*1 This, course, witness. is a matter the trial judge to determine as and when each claim of privilege is invoked.” apparent appellant’s counsel below was aware procedure for, general this terms, he so advised the
appellant open He, course, court. had a persist to questioning in his of Nickens and to have the pass court on whether the compelled witness could be to respond question to propounded. This, each he failed do, and, accordingly, complain he cannot now that the pursued. court erred in the course it Although repeatedly it has been held that “the witness personally privilege, himself has to assert the cases show this answering done his actions not though he even did himself raise point privilege.” Farmer App. 5 Md. Thus, 551. appellant’s we find no merit in contention that exercising Nickens failed state privi- “that he was lege against are opinion self-incrimination.” We single question propounded answer Nickens could have incriminated him since there were charges pending still him which the State could prosecuted (see Poling App. 45, have 48- 49). Accordingly, judge’s we find no in the error require question. refusal to Nickens to answer the
Judgment affirmed. MARYLAND STATE OF v. JAMES FRANK CAMPBELL and RICHARD PAUL
REEVES 441, September Term, [No. 1968.] August 13,
Decided *2 argued Murphy, C.J., and An- The cause was before JJ. and derson, Orth, Thompson, Morton, General, Silbert, Attorney Bernard L. Assistant with General, Burch, Attorney Donald Francis B. were whom Mason, County, Attorney Allegany State’s W. for Deputy Stakem, Attorney Allegany Paul J. State’s for brief, County, appellant. on for Sharer, L. J. Frederick with whom was William Wil- brief, appellees. for son on the majority
Murphy, C.J., opinion delivered the by Orth, J., Concurring opinion Court. concurs. Orth, J., page at 542 infra. appeal presents
This whether State is Maryland (1968 empowered by Supp.), Code Article Allegany 30 to the Circuit Court Section County acquittals magistrate entered a trial in' jurisdiction charging two cases criminal viola- Code, tions the Motor viz., Vehicle appellee as to Campbell, driving liquor under the influence of in viola- Maryland Code, tion of 66%, 206; Article Section and as appellee Reeves, intentionally spinning the wheels of his motor vehicle in violation of Section 210 of that Ar- ticle.1 Maryland,
In Benton v. 395 U. S. 89 S. Ct. (1969), Supreme L.Ed.2d 707 the United Connecticut, States overruled Palko v. guarantee against
held that
con-
tained in the Fifth Amendment
to the Federal Constitu-
tion is
to and enforceable
the states
through the Fourteenth Amendment. That constitutional
guarantee
protects
prosecution
a second
for the
*3
acquittal by
same criminal offense after
a tribunal com-
petent
try
accused,
prohibits
gov-
to
the
and hence
the
securing
by
ap-
ernment from
a new trial
means
an
peal,
though
acquittal may appear
even
the
to be errone-
Pearce,
711,
ous. North Carolina v.
395 U. S.
89 S. Ct.
;
(1969)
States,
It would thus to an be exercise in academic fu tility for tous determine whether Section 30 Article appeal magistrate’s 5 authorizes the State to from the judgments acquitting since, does, appellees, the if it it is light plainly Kepner in of Benton. unconstitutional See also States, concluding, v. United 195 U. 100. In so we principle jeop are mindful the that the rule of double ardy generally applicable only prose- is when the first granted petition 1. We the State’s for a to writ of certiorari question, Allegany County consider the ing1 the Circuit Court for hav- ground dismissed the State’s on the that Article not, by State, ap- 30 did as Section contended authorize an peal judgment by acquittal to the Court from trial a a Circuit magistrate. “(N)or any subject person 2. shall to for the offense same * * put jeopardy be twice of life limb and having jurisdiction a a before court eution involves by fine, way of a empowered impose punishment and a the com imprisonment, deterrent or otherwise as words, concept double crime; in other mission a clearly contemplates bars jeopardy that action which lawfully a instituted prosecution one second must be pun power convict court or tribunal which has Mo person prosecuted criminal conduct. ish the for his App. quin 524; 1 Md. v. Md. Smith magis by that the trial the State contended try appellees. And jurisdiction trate did not have charged against appellees con it is clear that offenses State, each of this of the criminal laws stituted violations being by or fine punishable imprisonment a misdemeanor circumstances, that we hold both. Under these jeopardy protection federal constitutional manifestly a by applies to case involv enunciated ju having ing, magistrate here, acquittal an a as before try punishment; and impose risdiction to case and to subsequent prose acquittal operates a to a such bar general or su cution a court of for the same offense Allegany i.e., perior jurisdiction, for the Circuit Court 268, 270, County. Law, See Criminal Sections C.J.S. Ridgley, cited, particularly there State cases State, 229 Md. (Wash.). Compare Bennett v. P. 2d 632 158, holding Lingner, and State v. relating principles under common to double law where inferior tribunal the offense one which over an jurisdiction, acquittal by tribunal will bar has an subsequent prosecution superior tribunal *4 State, 175, Md. same offense. v. See also Crawford jurisdic holding magistrate that where the is without try offense, placed tion an the accused has not been charged subsequently jeopardy for the same offense. course, long recognized has, part a been well
the common law of this State that the rule double jeopardy forbids a for the after second trial same offense
acquittal. Barger, State v. 242 Md. and cases cited pages 618-619; at State, Boone v. App. 11, 3 Md. 23-30. But Maryland as there was no provision constitutional protecting against jeopardy, double long and so as under Connecticut, Palko supra, v. the Fifth provi- Amendment sion jeopardy was not to the states, right legislature, of the statute, change the common law rule of double and authorize appeal, the State to acquittal, even from an equally was recognized. well State, Ford v. 266; 237 Md. Bennett v. State, supra; Adams, State 341; v. 196 Md. Johnson v. State, 447; State, Md. 641; Robb v. 190 Md. Jenkins App. changes 243. That Mary- Benton respect prohibits land law in Legislature this this as a matter of federal law, constitutional authorizing appeal the State to judgment from a of ac- quittal definite, is clear and and to the extent that Sec- tion 30 of Article 5 would authorize the appeal, State to is unconstitutional as violative of the Fourteenth Amend- ment to the Constitution of the United States.3
Appeal dismissed. J., concurring: Orth,
This case comes to us on writ certiorari to the Cir- Allegany County. cuit Court for Md. Rule (b). The appellees acquitted charges were of criminal viola- tions the Motor magis- Vehicle Code at trial before a August trate on 27 appealed 1967. The State to the Cir- Allegany County. cuit appellee Each moved to Nothing general interdicts of the State appeal Maryland Code, under Article Section “from judgment granting dismiss, quashing final order or or a motion to dismissing any indictment, information, presentment or in- * * quisition case, in a criminal action In such a the accused placed jeopardy. pres- has not been ently And while the State is statutory authority granting without from the suppress evidence, Mather, App. of a motion to see State Md. jeopardy provisions we think it clear that the double appeal. proscribe Federal Constitution would not such an See Kepner States, supra. v. United *5 hearing upon the motions were appeal and dismiss Maryland, holding granted. Benton v. in The guar- (1969), that the 23 L.Ed.2d 89 S. Ct. in Fifth contained antee of the United States the Constitution Amendment to through and enforceable states to prose- Amendment, prohibits the further the Fourteenth charges they were appellees of which on the cution of the try competent to acquitted at a trial before tribunal place again try be them them would them. To now guar- jeopardy in violation of the constitutional twice Code, assuming au- Thus, Md. Art. that antee. § appeal for the to the circuit court thorized the State any magistrate any judgment county cause, appeal upon Court which such “the motor vehicle hear the case de novo is taken shall to which the according and the to the law and determine the same matter,” equity authorization is such and the agree ap- Benton. I that the rendered unconstitutional peals be dismissed. must regard properly reached without
This decision is Benton, retroactivity non if Benton vel even appellees, prospectively applied, in the circumstances Benton, here, having prior not retried could not been think, however, again placed jeopardy. be abundantly clear that our decision is should made construing interpreted Benton to be retroactive. to be as only prospective application. I believe that it has opinions reconcile the rationale It is difficult to dealing retroactivity Supreme with the pronouncements. appears, its various constitutional however, prospective a choice there is between application of constitutional doctrine when retroactive clearly past, a clear with the even when there is break foreshadowed, distinguished pronouncement from a any existing interpretation depart from which does not merely previous of obsolete de- confirms the demise but States, Desist v. United 89 S. Ct. 1032- cisions. See Walker, 1033. It was established in Linkletter v. 381 U. prohibits 618, 629 that “the Constitution neither nor *6 requires retrospective expounding effect” for decisions affecting criminal I new constitutional rules trials. am guiding of aware the criteria resolution of the Denno, 293, summarized in v. 388 Stovall U. S. 297: “(a) by purpose (b) standards, the to be served the new by reliance the extent of the law enforcement authorities (c) standards, the effect on the admin- on the old and application of of a retroactive of the istration consistency ap- standards,” real in but find no new plication tendency away a other than of these criteria retroactivity. complete in Johnson The Court said Jersey, 719, 728: v. New 384 U. S. retroactivity nonretroactivity of a
“[T]he by automatically pro- rule determined on which the dictate vision of the Constitution of Each rule criminal is based. constitutional procedure functions, its own its own distinct has impact background precedent, of and its own way justice, in and the on administration of inevitably factors combine must which these vary the dictate involved.” with Certainly now established as of counsel is the assistance stage right aof criminal at each critical a fundamental right proceeding. almost denial of that trial, must Where applied invariably deny has been a fair applied retroactively. itself, at the trial Gideon It is so arraign- Wainwright, 335, at some forms U. S. v. 372 appeal, Alabama, and on ment, Douglas 368 U. S. v. Hamilton pre- California, S. 353. But while 372 U. v. stage to be critical determined was trial confrontation proceeding Wade, States v. in United a criminal 263, and California, v. 388 U. S. and Gilbert U. S. avoiding un- “aimed at were enunciated therein the rules enhancing reliability at the fairness supra, finding process,” Stovall, at it was held fact only all cases “affect those and Gilbert that Wade for future which involve confrontations identifi- cases purposes cation absence counsel” conducted opinion. after the 388 U. 296. date the Stovall S. at retroactively applied The Court has also rules crimi- procedure nal to correct serious flaws in the fashioned finding as, process trial, example, at in Jackson fact Denno, noted, however, v. 378 U. S.
degree
retroactivity adopted
Mapp
in Linkletter —that
Ohio,
every
367 U.
S.
was
case still
pending
on direct
on the date of that decision—
Shott,
Tehan v. United
ex
States
rel
U.
adopting
approach
California,
a similar
as to
Griffin
Jersey,
was abandoned in Johnson v. New
supra,
ju-
which was concluded
are no
that “there
risprudential or
adoption
constitutional obstacles” to the
*7
Id.,
point.
of a different cut-off
at 733. Johnson held that
Arizona,
Miranda v.
384
S.
and Escobedo
Illi-
U.
v.
nois,
applied only
Benton itself does not touch on the of its recognize application. retroactive that its constitutional pronouncement guarantee against the that jeop- ardy in the Fifth Amendment to the Constitution of the United States is to and enforceable through the the states Fourteenth Amendment cannot considered, retroactivity, be as to precise under the ra- Delaware, Jenkins U. S. held that Miranda’s determining admissibility standards ior in-custody of state- apply post do ments originally -Miranda retrials of cases prior tried to that decision. This had so held in Boone App. 11, 3 Md. 31-36. determining retroactivity exclusionary tionale of illegally respect rules with to evidence obtained other fashioned correct rules serious flaws the fact find ing process improper police activity. or to at trial deter ruling by quoting purpose Benton set out its States, 184, 187-188: v. United U. Green idea, underlying deeply one that in- “The Anglo-American grained system in at least the jurisprudence, all State with its power not be should allowed to resources attempts repeated to convict an make individ- offense, alleged thereby subjecting ual for an embarrassment, expense, and ordeal and him to continuing compelling in a him to state live enhancing anxiety insecurity, as well as though possibility even he innocent guilty.” found seems, light purpose of the even But it to me that given rule, there should be be served on extent of the reliance serious consideration administration on the and the effect the old standard new application of the standard. justice of a retroactive adminis effect on the experienced the chaotic We have holding Schowgurow v. tration of years overturning practice followed for Declaration of provision in the authority of under the by giving Maryland, Rights even the Constitution *8 by applying to convictions effect retroactive limited opin of that become final rendition which had not before Walker, supra, Id., Tehan Linkletter v. ion. at 132. Jersey, Shott, supra, Newv. ex rel Johnson States United principle criminal liti supra, “that the established claims, concerning ‘the gation constitutional * * * prospective rule of make the in the interest ap an require such exigencies of the situation Where the ” 726-727; Stov Johnson, supra, at 384 U. S. plication.’ I feel that Denno, supra, at 296-297. all v. exigencies require of the situation an application such of the Benton rule. The Court said :
“In
this Court decided the landmark
Connecticut,
case of Palko v.
We note that the posed was in Cichos v. State Indiana, 385 U. 77 and the S. writ was dismissed as improvidently granted rehearing denied, was 385 U. pointed majority As out opinion here, in the has, course, long recognized part been “[i]t well common law of this State that the rule double jeopardy forbids second trial for the same offense after * * * acquittal. Maryland But as there was no constitu- provision protecting tional jeopardy, double long Connecticut, so Palko supra, as under the Fifth provision against jeopardy Amendment double was not states, legislature, to the stat- ute, change the common law rule appeal, and authorize the acquittal, State an even from equally recognized.” (citations was well omitted.) In
548 Adams, 341, 344,
State Md. of Appeals Court prohibition jeopardy held that of double in the Fifth requisite process Amendment was not of due under the Fourteenth Amendment. And in Greathouse App. 675, Md. 688-689 this found that the com Court meaning jeopardy mon law of double as stated Hoff 425, 434, controlling Mary man v. was throughout judicial history land. So fol its this State regard lowed the common law with double changed legislative by enactment. as from time to time Palko to do and Palko remained the affirmed its so Supreme until Benton for the first law when the Court jeopardy pro that double time the notion “the endorsed represents a funda hibition of the Fifth Amendment heritage, it our and that mental ideal to constitutional through Fourteenth apply should the States the. only overruled It then that Palko was Amendment.” was “ holding. Benton with the nsofar it is inconsistent” [i] may represented approach to “Palko an It well be that rights (the Supreme) which Court’s basic constitutional rejected,” and had that its “roots recent have decisions Nonetheless, away ago.” years it was thus been cut said, only today Court “We 'Until June that is, thus, recognize Benton clear break inevitable.” pro I past feel that it should with spectively applied. guarantee
Accepting nature the fundamental compelling jeopardy, no reason see provides effec- It no give effect. full retroactive action, encompasses illegal police it deterrent tive unreliability coercion of evidence or no likelihood of conduct fairness of the and the confessions contrary I reliance feel that it. On not affected former on the the courts prosecuting authorities and on the administration burden law and the status application a retroactive flow that would clear prospectively. applying favor militate did thereafter Supreme decisions Palko and to believe of this State nothing courts cause the *10 the law followed them was not valid to doubt that continuing validity reliance on fully its justified. was not IAnd giving believe it obvious that of retroactive inevitably effect to Benton would heavy result bur den on the administration of in this State. Nor any justification do I find giving whatever retroactivity as, example, applying limited it to cases pending on at the time its decision was rendered. Appeals As the Schowgurow Court of said supra, many questions “In difficult of constitutional law arising trials, protection rights criminal of the weighed against protection individual of so ciety. liberty.” Both are basic to ordered 240 Md. at 134. feeling I am of dip that here the of the scales favors protection society. Thus would hold that Benton applies only began to cases in which the trial after June 1969.
STATE OF MARYLAND v. LEONARD
JOSEPH MATHER 470, September Term, [No. 1968.] August 13,
Decided