Melvin W. Martin v. J.B. Taylor, Acting Warden Attorney General of the State of Virginia

Before RUSSELL MURNAGHAN, Judges, and Circuit NIEMEYER, District Maryland, Judge for the District designation. sitting by NIEMEYER, Judge: District tried and convict- W. Melvin Martin of vandalism in the misdemeanor ed of City of Bue- District General Vista, door Virginia for na gas station on of a the cashier’s booth Shortly July there- night of convicted of the he was tried and after entering attempted breaking and felony of larceny in intent commit with the City of Buena for the Vista entering that booth. same for the charges separate gave incident rise exhausting state courts. After in the two in the Dis- remedies, petition filed a Martin cor- of habeas for a writ trict Court below contending that pus under U.S.C. § jeopardy for the same put in he was twice the offenses Concluding that offense. double were later Martin was tried peti- A few months his denied District Court the purposes, felony attempt- for the of the Circuit Court affirm. We tion. entering breaking and the intent ed underlying felony of larceny. The commit I entering at Va. is codified evening rainy the midnight on after Well 18.2-91, per- the Ann. 18.2-90 and Code §§ witness, riding in while a July of parts provide: of which tinent automobile, person pushing a observed his 18.2-90 “§ sliding glass window on the and any person nighttime en- If ... the in the gas station at a booth a cashier’s any time ters or without Vista, Virginia, which Buena City of office, any shop, and enters ... breaks turned night. witness closed for to commit storehouse ... with intent station, but to the came back and around murder, robbery, he shall be rape or Neverthe- person. not then see he did statutory burglary, guilty of deemed less, police station he drove felony. shall which offense be a Class incident. reported the the re- investigated Angus When Officer 18.2-91 § in blue dressed someone port, he observed any of the acts any person If does kneeling front parka green jeans and a intent to in 18.2-90 with the mentioned booth, gas station glass door of a than larceny, any or other commit shattered, with half of which bottom murder, rape robbery, he shall be had a person inside the door. his hand burglary.” statutory guilty of deemed “raking motion” making a stick and was Martin, testifying against the his trial At in the booth. cigarette toward the machine on the attorney, of his claimed advice an attempted to make Angus Officer When almost he drunk evening of his arrest had fled, a near- arrest, into person jumped whiskey, a fifth of Jack Daniel’s all of a creek, disappeared into the bushes. by a of Mad twelve-pack of beer and bottle station, An- gas Officer Returning to the passed by he Dog He testified that wine. including nearby, a fishing gear gus found to urinate stopped he station where inside. prescription bottle tackle box with ciga- light alley. heWhen wanted person whose Angus knew Officer thought he rette, no matches and he had a friend of prescription as name was He station. gas find some at could and or- grandmother, Martin’s defendant fell drunk he that because was claimed He also house. dered a stakeout her and shattered accidentally against the door gas out the station. staked stealing anything. glass. He denied later, Martin half hour One He was convicted station, from the creek came toward years. two sentenced been, and was had the tackle box sat where arrest, Mar- arrested. At the then time II jeans wearing blue wet and was tin was Jeopardy Clause The Double green parka. and a prose a second prohibits Amendment Fifth acquittal; District was tried in the General after Martin same for the offense cution Court, misdemeanor convicted of the a second glass in the damaging conviction; multiple punishments

vandalism after door, days. The stat- sentenced to 60 Carolina same offense. North for the convicted, 711, 717, Va.Code he was Pearce, ute under which part: 18.2-137, pertinent two provides in Whether Ann. L.Ed.2d § dou purposes the same are unlawfully, offenses any person, “If frequently has been visited injure ble destroy, deface or feloniously, ... deci its seminal since Supreme Court his personal, not property, real or any States, 284 Blockburger United guilty of a Class sion own, he shall be ... L.Ed. misdemeanor.” aggregations that “where the same act proof, it stated a focus on the over- itself, conspiracy constitutes a violation of two all “totality or transaction or the statutory circumstances,” provisions, the test to be necessary. distinct becomes manner, whether there are applied subject- to determine two this an accused will be one, only provi- separate prosecutions is whether each ed offenses or for the same proof of a requires conspiracy sepa- sion fact which the based selection of 304, 284 U.S. at other does not.” S.Ct. rate sets of overt acts for each indictment. Ohio, U.S. v. (4th at 182. U.S. 840 F.2d 1184 Cir. (1977), 1988). L.Ed.2d 187 S.Ct. Blockburger recognized test fo- Any thorough jeopardy analysis double necessary proof cuses on the must, therefore, only consider not the na- offense, statutory of each elements rather charged ture of the proofs offenses and the presented than on the actual evidence at necessary charges, to convict on the but Thus, greater included trial. a lesser and a also the factual circumstances of the trans- offense were held to be the same for dou- giving action rise to the successive criminal jeopardy purposes.

ble prosecutions. Blockburger one, only test is not the scrutinizing present the evidence however, determining whether a second ed in jeopardy successive trials for double by Jeopar- is barred the Double purposes, only the material evidence that dy example, principles For Clause. probative of conviction which was estoppel collateral are embodied in the presented at the first trial should be mea Jeopardy prohibit Double Clause to succes- against presented sured the evidence at the prosecutions prose- sive where the second successive trial. That the State volunteers relitigation requires cution of factual greater proof a at the first trial does not already favorably issues resolved subsequent shield a trial which otherwise is Swenson, the first. Ashe v. by not on the same discipline offense. This 25 L.Ed.2d 469 analysis Blockbur only by is indicated not (1970). Moreover, this Court has noted ger, by Supreme opin the later Blockburger that even the test will not be Ohio, supra, Brown v. ions in and Illinois applied formalistically, but will focus on Vitale, spirit vindicating in a specifically L.Ed.2d 228 and is rec guarantee against constitutional retrial. ognized by this Court’s decision in Jordan. Va., Jordan v. Commonwealth of 653 F.2d Vitale, As the Court observed in (4th Cir.1980). possibility “the mere the State will In Jordan the defendant obtained the ingredients seek to on all of the neces drug by presenting forged pre- Eskatrol a sarily included the traffic offense to scription pharmacist. to a having After prosecu establish an element of first [the present- been tried for the misdemeanor of would not be sufficient to bar the tion] ing forged prescription, he was tried for Illinois v. prosecution.” latter felony possession of a “controlled 410, 419, 100 2260, 2267, U.S. 65 L.Ed. substance.” This Court held that the state 2d 228 could not conduct successive trials because necessarily by “the evidence used Ill government prosecuting the earlier mis- Turning Martin, now to the trials of charge totally demeanor would have suf- we note that there is no record of Martin’s ficed to sustain the later conviction.” in the Buena Vista General District 653 F.2d Court, and therefore we assume that flexibility

The need for determining proof State’s the first trial followed the whether the same offense subject charge was the and that no other offense was Jordan, yet of successive trials is supra proved revealed more tried. See clearly conspiracy cases. Since the n. 3. Since Martin was convicted conspiracy may vandalism, proof necessarily presented be established necessarily the auto had not Martin shat- have shown that must there of involved theft joyriding one-half of the succes in the lower tered —the gas sive have been sta- cashier’s booth door within the for the “same offense” is material mean tion, only that evidence ing Jeopardy Clause. 447 analysis. Double the double (Emphasis S.Ct. at 2265. however, neces- proof, That supplied.) charge sary element conclude, therefore, that Martin was to We entering with intent successively for the same offense in the sec- not tried larceny tried which was commit Jeopardy requires spe- as that term is used Double attempt crime An ond trial. Fifth Amendment. some Clause of the a crime and to commit cific intent but falls toward which tends overt act AFFIRMED. of crime. the of the consummation short statutory this underlying offense The MURNAGHAN, Judge, breaking entering at of case—that dissenting: larceny— intent to commit the night with been,” might Focusing on “what have entering. only an breaking, requires no prose- majority condones the successive the else, Martin, shat- or someone Whether of Martin because Martin cutions Melvin glass is immaterial. tered the tried for the “could have crime been tried for the have Martin could been charged in case under several the second under charged in the second case crime proof.” aggregations of At proof. aggregations of established, however, several different that is “what It specific the one, at trial he admitted For not the correct test for might have been” is attempt crime of of the intent element evaluating prosecutions successive under to steal that he wanted when he stated Jeopardy Clause of the Fifth the Double that, overt match, coupled with his prop- the Amendment to Constitution. may have the booth approaching conduct in was”: we must examine er test is “what aggregations, enough. prosecute For other the actually used to been the Here, seen may have been trials. the successive sliding glass to the cashier’s Virginia window of has admit- the Commonwealth evidence, have booth, time he at another on the same ted that relied opening door, in the with his hand to convict breaking seen Mar- been glass. ver- by the shattered Each created The use of successive tin in both trials. the of- probative have of thus violates consti- sion here entering. attempted breaking and “that an accused who guarantee fense tutional prove necessary prose- not have been to of criminal It would stood the ordeal has once glass. through judgment it was Martin who broke to cution —whether proof not acquittal essential be re- The matters conviction —shall again not trial do gauntlet’ at the second quired offense tried to ‘run the proof necessary to alleged establish misconduct.” United include the the same (4th And charged first 1188 trial. 840 F.2d vandalism States States, not proof Cir.1988) necessary (citing of vandalism does v. United Green 223-25, charge 184, 187-90, of at- elements of the include the entering respect- tempted (1957)). I therefore 199 2 L.Ed.2d larceny. intent to commit fully dissent. the succes- majority Illinois v. agree with the the strict holding about its not violate

supra, prosecutions do observed sive Ohio, supra: by the ruling in articulated Su- test earlier “two offense” Blockburger v. United preme Court prove auto been able Had the State 76 L.Ed. States, 284 de- theft, proving that the also without the Court Blockburger, took, kept auto 306 operated, or fendant ruled: proof consent of without owner—if pragmat a more flexible and therefore con- is transaction act or [W]here one, on the formal focuses not ic distinct statu- of two a violation stitutes rather offenses but of the two elements applied test to be provisions, tory actually utilized to establish proof are two of- there whether determine test, this “same evidence” them. Under one, provi- each is whether fenses or by dou prosecution is barred which the of a fact proof requires sion actually used if the evidence ble not. does other suf first offense would prosecute the Here, at 182. 304, 52 S.Ct.

Id. as of the second fice to convict proof of required misdemeanor vandalism 873-74; Jordan, 653 F.2d charged. re- an element property, damage to Nielsen, see In re felony, charge; by the quired (1889), quot 672, 676, 33 L.Ed. entering, required Commonwealth, Mass. ing Morey v. larceny, to commit intent specific v. Sabel (1871); required the vandalism an element (2d Cir.1959). la, F.2d charge. Virgi- v. Commonwealth In Virgi Brief, the Commonwealth its however, Cir.1980), (4th nia, F.2d the reason to reconsider nia asks this court may prosecutions successive held we that “The Com the Jordan decision: ing behind even Jeopardy Clause Double the violate asking this Court is thus monwealth Blockburger test for iden- simple the when ruling reasoning its behind the reconsider satisfied, if the is crimes tifying Jordan, was, effect, gratuitous, in in fact, are, in prosecutions successive prosecu that successive to hold instead and “Successive the same offense: brought for purposes jeopardy for double occur tions dou- component of a implicate prosecutions are con involved the only when offenses in implicated protection jeopardy ble First, Brief 8-9. tinuing.” Appellee’s at charges such joined of single prosecutions the course, have panel does not this Blockburger ...: the in as those involved precedent. change Fourth Circuit power to Id. at itself.” against retrial protection reasoning could the Jordan Second, if even “same Jordan, we described the In 873. dictum, do not find mere treated as be prosecutions for successive test offense” Virginia compelling. argument Virginia’s involving as Brown v. key factor behind argues that the re- evidence “the question whether the 2221, Ohio, 161, L.Ed. 432 U.S. upon one a conviction quired warrant “continuing nature” (1977), 2d was have been [prosecutions] would offense: upon a conviction support sufficient was Brown Jordan and to both Critical prose- other,” finding the second and respective courts’ determinations evidence if the cution barred and (joyriding involved the offenses that so serve. drug obtaining a in Brown: theft auto 176, Nielsen, drug in Id. In re (quoting that possession and by deceit (1889)). 676, Jordan) 672, L.Ed. It was continuing ones. S.Ct. were approach court Brown tkis reason that for We reaffirmed real- were 840 F.2d the two crimes that concluded prosecution was one, further (4th Cir.1988): and ly that for this reason that And it is barred. that offenses multiplicity of Given the have prosecution should further criminal transac- single from a arise in Jordan. barred test, Blockburger tion, formalistic interpretation That on the technical Brief Appellee’s narrow focus with its Brown, Supreme inad- Court charged, is offenses is incorrect. elements joy- successive this constitutional that held equate to vindicate (a misdemeanor) theft (a and auto riding general The against guarantee retrial. be- by double barred felony) were successive determining whether test for a lesser included joyriding is cause offense” the “same prosecutions involve law, States, Virginia proving pushing under In Garrett United theft. of auto pulling 85 L.Ed.2d 764 would have been sufficient and S.Ct. entering, Supreme prove attempted described and charged follows: was in the sec- Brown as with which Martin prosecution. The ond Commonwealth ad- in Brown had stolen an mits, however, that it fact it for several did automobile driven single in a course evidence in the engaged on days. He had trial, driving a stolen car. that it relied instead on conduct — support a mis- conduct would the door very same that Martin had smashed joyriding prosecution reaching demeanor was seen in the door theft, auto de- That the focus the second trial stick. state pending on the defendant’s entirely door is borne was broken in the conduct engaged mind while opening closing by the statements out Every of his conduct question. moment pros- by counsel at trial. The second made charge joyriding as relevant “proof runs afoul of the actu- thus ecution charge. theft to the auto as was Ragins. ally utilized” test articulated Garrett, at 105 S.Ct. at Virginia fact contends “[t]he distinguished expressly was not theory window this evidence] [the pros- involving successive merely as significance,” is of no be on below relied offense and a lesser for a included ecutions par appellee, prevailing as the cause “[t]he 787, 789, 105 offense. See id. greater any ground support ty, may rely on Illinois v. 2416; also see ruling, or not that trial court’s ‘whether upon considered ground relied or even (“our holding in (1980) 2265, L.Ed.2d 228 65 ” Brief at Appellee’s by the court below.’ for a ... a conviction Brown v. Ohio that v. Arthur (quoting 12 precludes later lesser-included 12, Co., 805, n. 104 Young & 465 U.S. 814 offense”). The greater for the prosecution 12, 1495, n. 79 L.Ed.2d 826 1501 S.Ct. problem the Common- underlying (1984)). reliance is The Commonwealth’s it uses “lesser argument is that wealth’s Arthur in rule misplaced. The articulated “continuing offense” offense” and included Williams, 397 Dandridge Young and in fact, interchangeably. neither 6, 1153, 471, 6, 1156 n. n. 90 S.Ct. 475 present case involve nor the nor Jordan only with the 25 L.Ed.2d 491 deals In view of this “continuing” offenses. decision is a lower where court’s situation Ra- Jordan and clear statements Court’s grounds different appeal on on sustainable test to evidence” gins adopting the “same court. by the lower articulated those from whether determine successive here, apply where rule does The double and violate for the same offense are “the ac focuses on inquiry properly sug- Virginia’s jeopardy, see no basis 1188) (Ragins, F.2d at tually utilized” only to cover Jordan we limit gestion that offenses for the two establish below to “continuing” offenses. successively pros the defendant using by Here, Virginia violated Jordan ecuted. prosecutions. evidence both the same relevance acknowledges the majority in the entering element breaking and suggests that Ragins of and with evidence proved trial was second permit- Martin is prosecution of glass door —the same Martin smashed Vitale, Illinois by ted van- Martin on the to convict used evidence Vi- (1980). In L.Ed.2d 228 Vir- in the first trial. misdemeanor dalism prior tale, that a held Supreme breaking argues that the evidence ginia reduce failing to of a driver conviction prove not needed glass door was would accident automobile to avoid speed tes- entering charge, because a subse- bar, jeopardy grounds, on double at the second presented timony was man- involuntary quent pushing pulling Martin was seen law, a Illinois a matter slaughter “as It is true that cashier’s window. if booth, may always to slow is a neces- ier’s and at another time he failure careless manslaughter by automo- sary element have been seen with his hand “if in bile,” S.Ct. at id. at opening glass. created the shattered manslaughter prosecution Illi- been pending would have probative Each version proves a failure to slow on and nois relies attempted breaking of the offense of as the reckless act accident to avoid an entering. Id. at prove manslaughter.” necessary to here, (emphasis supplied). At But un- 2267. The Court stressed 100 S.Ct. at already had the like we have possibility that the inherent the risk trial, Virginia second trial. At the second evidence, of fail- use the same state would evidence, relating relied on the same slow, prosecution: in the second ure to door, glass that was used to broken event, that to may it be sustain its any pros- secure Martin’s conviction the first may State find it manslaughter case the ecution. prove a failure slow or to necessary to A small amount of evidence was indeed necessarily involving conduct presented indicating that Martin had been failure; as much concede such he seen at window before case, In that because Vi- prior to trial. However, the win smashed the door. had already convicted for con- tale has per dow evidence been the necessary element of the is a duct that mitted, might acquit Martin well have been which he has been crime for more serious identify ted because the witness could not of double charged, his claim the man saw window. under Brown substantial be The evidence about the smashed door in Harris v. Okla- our later decision necessary prove was thus homa, entering charge at the second L.Ed.2d 1054 has used the trial. The 2267. The state had at S.Ct. at “necessary” “necessarily” re words acts, such as argued that other reckless See, e.g., Vi peatedly this connection. failure to crossing guard and disobeying a tale, 419, 420, 421, 447 U.S. at brakes, could be used to maintain Jordan,, we looked to 2266, 2267, 2267. In Id. n. manslaughter charge. & required to warrant a convic “the evidence n. 7. The at 2266 & (emphasis supplied). tion.” 653 F.2d at 873 for a de Vitale remanded the case only wisp evidence was Because proving failure termination of whether (possi jury a man presented to the about statute necessary as a matter of slow was Martin) being bly, necessarily, ob rely and whether the state fact passerby pushing served failure to slow or again on the defendant’s window, cashier’s here it is abun reckless acts to would instead on other prosecution dantly clear that in the second manslaughter charge at the sec necessarily Virginia in fact relied a second 100 S.Ct. at 2267. ond trial. door evidence to obtain time on broken per- Vitale majority concludes a conviction for mits of Martin the successive entering.1 because improper therefore for the Com- It was Martin could have been tried for the through the run Martin monwealth to charged in the second case under crime be, majority may as the gauntlet twice. It aggregations several conviction could suggests, that a second approach- his overt conduct reliance on the been obtained without enough.... have ing have been the booth his Martin at evidence used to convict pull- may have been seen the second first trial. But because ing sliding glass window to the cash- Garrett, question. actually proved gaged See in the conduct 1. The additional element supra specific quoted intent to U.S. at Brown, larceny. difference As in commit was en- of mind while he the defendant’s state held, inquiry the relevant already been has was,’ might ‘what have

for us is ‘what clear, Virginia abundantly as It is

been.’

concedes, evidence was used that the same that the same It is also clear

in both trials. necessary to obtain a convic- trial, as the evidence the second

tion at have insuf- otherwise

presented would Following the defendant.

ficient to convict controlling precedent of that the successive clear to me is Martin violate the Double

prosecutions of I therefore dissent.

Jeopardy Clause. INTROCASO,

Alexander

Plaintiff-Appellant, CUNNINGHAM; Edu- Board of

Paul H. County, Philip L.

cation of Dorchester Holdt; Jay

Jones; Kathryne G. Har- C. Reynolds Carpenter,

per; Defend- T. ants-Appellees. Md., Fallin, City, Ellicott Glen Marcus No. 86-2064. plaintiff-appellant. Appeals,

United States Court Burch, (Francis Fischer B. Kurt James Fourth Circuit. Jr., Tiburzi, Marbury, Bal- Piper A. & Paul brief), timore, Md., defendants-appel- Argued Dec. 1987. lees. Sept. Decided WINTER, Judge, Before Chief SPROUSE, Judge, and HAYNSWORTH, Judge. Senior Circuit WINTER, HARRISON L. Chief Judge: and his Introcaso

Plaintiff Alexander Fallin, counsel, appeal the district M. Glen $10,294.09 award to defendants court’s 42 U.S.C. attorney’s pursuant fees against Introcaso and sanctions § $18,558.85 against Fallin the amount of Civil Federal Rules Rule 11 of the under district that the We conclude Procedure. in award- discretion not abuse its court did against ing attorney’s fees under §

Case Details

Case Name: Melvin W. Martin v. J.B. Taylor, Acting Warden Attorney General of the State of Virginia

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 1, 1989

Citation: 857 F.2d 958

Docket Number: 87-7746

Court Abbreviation: 4th Cir.