Kendall v. State

McDonald, J.

The prohibition against double jeopardy, an important protection provided by the federal Constitution and our common law, precludes further prosecution of a defendant on a charge following an acquittal on that charge. That protection is triggered not only by a properly-labeled “acquittal” but also by a “ruling of the judge, whatever its label, [that] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”1

Applying the principle that the substance of a decision controls for double jeopardy purposes, our Court has held that a putative “dismissal” of charges was in substance an acquittal that triggered the protection against double jeopardy.2 This case presents another variation for application of that principle. The trial judge in the District Court denied a defense motion for judgment of acquittal on three charges against the defendant. The court then terminated the prosecution of those charges for a purely procedural reason — noncompliance with the rule on service of process — that the court made clear was unrelated to guilt or innocence but recorded its action on the docket sheet as “NG” — i.e., “not guilty” — a label that seemingly denotes an acquittal. This case raises the question whether the protection against double jeopardy precludes the State from pursuing an appeal of that decision.

The Circuit Court for Talbot County held that, in these circumstances, the trial court’s action was tantamount to a preliminary motion to dismiss and that the State could therefore appeal the trial court’s decision concerning service of process. We agree with the Circuit Court — and with the courts in other jurisdictions that have confronted similar situations — that a mis-labeled dismissal of charges for a purely procedural reason unrelated to guilt or innocence does not trigger the protection against double jeopardy.

Background

On March 28, 2011, Angela Jones Kendall was charged with driving under the influence of alcohol in violation of Maryland Code, Transportation Article (“TR”), § 21-902(a)(l); driving or attempting to drive a vehicle while impaired by alcohol, in violation of TR § 21 — 902(b)(1); driving or attempting to drive a vehicle while impaired by drugs or alcohol and drugs, in violation of TR § 21-902(c)(l); and failure to control vehicle speed to avoid a collision, in violation of TR § 21-801(b). The case came to trial in the District Court of Maryland sitting in Talbot County, on June 1, 2011. Ms. Kendall entered a plea of “not guilty” on all charges and elected to have the charges tried by the District Court in a bench trial.

The State called five witnesses. After the State rested its case, defense counsel made a “motion for judgment,” arguing that the investigating police officer had failed to obtain a blood sample from the defendant to determine her blood alcohol concentration following the arrest in accordance with Maryland Code, Courts & Judicial Proceedings Article (“CJ”) § 10-305.3 As an additional ground, defense counsel argued that the defendant had not been properly served with the charges as required by Maryland Rule 4 — 212(h), which provides that “[t]he person issuing a citation, other than for a parking violation, shall serve it upon the defendant at the time of its issuance.”

The trial judge agreed that the officer had failed to comply with CJ § 10-305 and granted the defense motion on that ground as to the charge of driving while under the influence of alcohol.4 The court denied the defense motion with respect to that ground as to the remaining three charges. After denying the motion, the court expressed a willingness to discuss case law on the service of process issue. There followed a discussion between the court and counsel about an appellate decision that construed the rule governing service of criminal citations, and the court permitted the State to recall a police officer to testify briefly about how he served the citations that commenced the prosecution. The officer testified that he had given the citations to Ms. Kendall’s mother, not Ms. Kendall. There was no testimony as to the substance or the merits of the charges in the citations.

After the testimony, the trial judge heard additional argument from counsel as to the adequacy of the service of the citations; none of that argument concerned Ms. Kendall’s guilt or innocence of the charges. At the conclusion of the argument, the following colloquy took place:

THE COURT: I’m going to grant the motion.

[PROSECUTOR]: I would note, just for the record, Your Honor, that Judge Moylan addresses that exact same rule [in Darrikhuma v. State, 81 Md.App. 560, 568 A.2d 1150 (1990) ].5

THE COURT: I understand that but I’m looking at, I read the rule and it says “shall.” And the officer is there, Ms. Kendall is there. It’s not a situation where she is unconscious or undergoing surgery, she’s in fact, he’s standing out in the hall and she is in a room. And instead of going in and serving her, he hands it to her mother. And I don’t think that’s what the rule contemplates____

[the trial court then referred to the Darrikhuma case and the practice of other officers serving citations in hospitals in other cases]

... In this case she was there, he was there, and he served somebody else and that’s not what the rule says.

[PROSECUTOR]: I understand.

THE COURT: So I think that he, the rule in this case was not complied with.

[PROSECUTOR]: For the record to entertain that motion as a preliminary motion to dismiss?

THE COURT: Maybe, yeah.

[PROSECUTOR]: Thank you. Nothing further.

THE COURT: I’m going to grant this motion based upon, I think that this is one of those situations where although Judge Moylan has an analysis I think the facts in this case fly directly in the face of the requirements of the rule.

[PROSECUTOR]: Yes, Your Honor.

THE COURT: And there is no justification for not complying.

At the same time that he rendered his decision on the defense motion, the trial judge completed and signed a docket sheet for each charge.6 The docket sheets offer the following choices to record a disposition: “G” (guilty), “NG” (not guilty), “PBJ” (probation before judgment), “Dismissed,” “Merged,” “ABD” (abated by death), “NCR” (not criminally responsible), “NC” (nolo contendere), and “JA” (judgment of acquittal). The trial judge recorded “NG” as to each charge and, in that regard, did not differentiate his disposition of the driving while intoxicated charge for non-compliance with CJ § 10-305 from his termination of the other three charges for faulty service of process.

The State subsequently noted an appeal to the Circuit Court for Talbot County with respect to the termination of the prosecution of the three charges for improper service, characterizing the trial court’s action as a “dismissal.”7 Ms. Kendall moved to dismiss the appeal, arguing that the District Court action was an acquittal on those charges and that the State’s action violated her constitutional and common law protections against double jeopardy.8

The Circuit Court held that the District Court had clearly acquitted Ms. Kendall on the first charge of driving while intoxicated — an issue not contested by the State. However, the Circuit Court found that the record was “sufficiently clear” that the trial court had not acquitted her of the other three charges. Rather, the Circuit Court held, the trial court’s action was equivalent to granting a preliminary motion to dismiss for improper service. The “not guilty” verdicts on the abbreviated docket forms, the Circuit Court held, “were released in error.”9 The Circuit Court therefore denied Ms. Kendall’s motion to dismiss the State’s appeal on double jeopardy grounds.

On April 20, 2012, we granted Ms. Kendall’s petition for certiorari on her double jeopardy claim.10

Discussion

Double Jeopardy

The federal Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” United States Constitution, Fifth Amendment.11 That protection is also a fundamental part of Maryland common law. See State v. Taylor, 371 Md. 617, 629-30, 810 A.2d 964 (2002). In a nonjury trial, jeopardy ordinarily attaches when the first witness is sworn, Crist v. Brete, 437 U.S. 28, 37 n. 15, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), although in some circumstances it may attach without the appearance of a witness if the defendant is “subjected to the risk of conviction.” Daff v. State, 317 Md. 678, 688-89, 566 A.2d 120 (1989) (acquittal following failure of prosecution witnesses to appear for trial). For each offense for which the defendant is thereafter acquitted, both the federal Constitution and State common law prohibit a second prosecution. See Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (federal Constitution); Gianing v. State, 320 Md. 337, 342, 577 A.2d 795 (1990) (Maryland common law). “If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair,” even if the acquittal was based on an “egregiously erroneous foundation.” United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); see also Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962).12 Nor are double jeopardy protections vulnerable to judicial second thoughts. “[Ojnce the trier of fact in a criminal case, whether it be the jury or the judge, intentionally renders a verdict of not guilty, the verdict is final and the defendant cannot later be retried on or found guilty of the same charge.” Pugh v. State, 271 Md. 701, 706, 319 A.2d 542 (1974) (even though trial judge changed mind after initially finding evidence insufficient on drug charge, further prosecution of defendant on that charge was barred); Brooks v. State, 299 Md. 146, 153-54, 472 A.2d 981 (1984) (trial judge could not “reconsider” and submit conspiracy charge to jury after first ruling that evidence was insufficient to establish that offense).

It is also well established that, if a defendant seeks to have a prosecution terminated without any submission to a judge or jury as to the defendant’s guilt or innocence of the charges and the court grants that motion, further prosecution is not barred. The critical question is “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (Brennan, J.).

For example, in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the defendant moved, both before and during trial, to dismiss the drug charges against him on the basis of prejudicial pre-indictment delay. The trial court initially denied the motion, but later granted it in the midst of trial. The Government then sought to appeal the dismissal. The defendant asserted that further prosecution was barred on double jeopardy grounds. The Supreme Court held that double jeopardy principles did not bar the Government’s appeal and potential future prosecution, as the trial court’s action was not in substance an acquittal. The Court reiterated its statement in Martin Linen that the label that a trial court attaches to its decision does not determine the significance of that ruling for double jeopardy purposes. 437 U.S. at 96, 98 S.Ct. 2187 (“the trial judge’s characterization of his own action cannot control the classification of the action”). The Court identified the critical question: “[W]here the defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred ...” 437 U.S. at 101, 98 S.Ct. 2187.

In applying double jeopardy principles under Maryland common law, this Court has adopted the approach set forth in Martin Linen and Scott. In State v. Taylor, 371 Md. 617, 810 A.2d 964 (2002), this Court considered the consolidated appeals of two cases. In each case the State and the defendants had stipulated to certain facts in connection with pre-trial motions and the trial court had granted, before trial, a defense “motion to dismiss” the charges on the basis that the stipulated facts revealed that the State would be unable to prove an element of the charges. This Court held that the trial courts exceeded the permissible scope of a motion to dismiss by considering the sufficiency of the evidence. In both cases, the grants of the motions to dismiss “substantively constituted judgments of acquittal and therefore must be given effect as such for double jeopardy purposes.” 371 Md. at 644, 810 A.2d 964. “Although cloaked in the form of the grant of motions to dismiss, the substance of the trial judges’ rulings was to grant judgments of acquittal and so we must treat them for double jeopardy analysis .... dismissal of a criminal information or indictment based on an assessment of the sufficiency of the evidence is tantamount to an acquittal.” Id. at 648-49, 810 A.2d 964. In reaching this conclusion the Court relied on the trial courts’ explanations of their rulings, noting how they depended on an evaluation of facts bearing on whether the defendants were guilty of the crimes charged. Id. at 652-53, 810 A.2d 964.

Application of Double Jeopardy Principles

The application of double jeopardy principles in this case turns on the nature of the District Court’s ruling on the three charges in question. It is abundantly clear, and the parties agree, that if the District Court acquitted Ms. Kendall of the charges against her — even if in error — the State is barred from appealing that decision.13 But the label “acquittal” does not fit the trial court’s action. The record reveals the following sequence of events:

• At the close of the State’s case, defense counsel moved “for judgment.” In context it appears clear that she was asking for a “judgment of acquittal,” as permitted by statute and rule.14

• The trial court entertained argument which dealt, in part, with the State’s compliance with a statute requiring it to obtain a certain type of evidence (blood sample) in certain circumstances.

• Based on the evidentiary issue, the trial court granted the defense motion as to the driving while intoxicated charge, but denied the motion as to the other three charges.

• The court then entertained further discussion of a procedural issue — whether the police officer had properly served the statement of charges. There was no further discussion of the blood test or any other evidentiary matter.

• The court permitted the prosecutor to put on testimony concerning how the police officer physically served the citations; that testimony did not concern the substance of the charges.

• Counsel and the court then discussed the Maryland rule on service of citations and a Court of Special Appeals decision construing that rule. There was no discussion of the substance of the charges or the evidence against Ms. Kendall.

• The trial court then “granted the motion” as to the three remaining charges and entered “NG” on the docket sheets, on the ground that the State had not complied with the rule on service of citations. The court explained that the basis of its ruling was the presence of the word “shall” in the rule concerning service of process.

• The trial court agreed with the observation of the prosecutor that the “motion” that was being granted as to the three charges was actually a preliminary motion to dismiss and repeated that the basis of its decision was the interpretation of the rule on service of process.

By definition, a motion for judgment of acquittal is based “on the ground that the evidence is insufficient in law to sustain a conviction[.]” Maryland Code, Criminal Procedure Article, § 6 — 104(a)(1). Here the trial court clearly denied the motion as to the three charges to the extent it was based on the sufficiency of the evidence as to those charges. One who reads solely the portion of the record after the court denied the motion for judgment of acquittal as to the three charges would have no idea of the substance of the charges or the evidence in the case — because no mention at all was made of them. In that portion of the record, the court and counsel have turned their attention entirely to the mechanics of service of process in this case, the rule governing service, and an appellate decision concerning the consequences of a failure to comply with that rule. It could not be clearer — even if the trial court had not explicitly said so — that the termination of the prosecution of those three charges was based on a purely procedural ground having nothing to do with Ms. Kendall’s guilt or innocence of those charges. This was not “a resolution, correct or not, of some or all of the factual elements of the offense[s] charged.” Accordingly, the protection against double jeopardy was not triggered by that ruling.

To be sure, the trial court entered “NG” on the docket sheets for the three charges. Yet it appears that those notations are, at most, the equivalent of a “misspoken verdict.” See Pugh v. State, 271 Md. 701, 706-7, 319 A.2d 542 (1974). The trial court did not utilize either of the more appropriate options on the docket sheets. While the court did not check off “dismissed” on the docket sheets for the three charges in question, it is also notable that the trial court did not check off “JA” (judgment of acquittal) for the first charge of driving while intoxicated, even though it is plain on the record — and there is no dispute — that the court in fact granted a motion for judgment of acquittal on that charge. Indeed, the trial court appeared to regard “NG” as simply an indication that the case had been terminated in favor of the defendant rather than an indication of the exact nature of decision that it had made.

In contrast to this case are the prior decisions of this Court where it was held that double jeopardy principles precluded further prosecution because a dismissal was based on the insufficiency — or complete lack — of evidence on the charges in case. For example, in Daff v. State, 317 Md. 678, 566 A.2d 120 (1989), the prosecution’s witnesses failed to appear at the time the case was called for trial because of an unexplained failure of the clerk’s office to issue subpoenas for them. The defendant was ready to proceed with the trial, and the circuit court offered to nol pros the charges for the State. When the prosecutor declined that option, the court denied a postponement and entered a finding of not guilty. This Court held that a re-institution of the charges was barred by double jeopardy principles, noting that, even if the trial judge erred in denying the State’s request for a postponement, it “would [not] affect the finality of an acquittal thereafter entered on the ground of insufficiency of the evidence.” 317 Md. at 685, 566 A.2d 120 (emphasis added). See also Farrell v. State, 364 Md. 499, 774 A.2d 387 (2001) (relying on Daff to hold that the State may not re-institute charges after the State’s witnesses failed to appear for trial and a not guilty verdict was entered on the charges).

There are numerous cases from other jurisdictions where state appellate courts have held that a trial court’s “judgment of acquittal” or “not guilty” was not in fact an acquittal for double jeopardy purposes because the trial court did not purport to be resolving any factual question relating to the offenses charged. See, e.g., Connecticut v. Kruelski, 250 Conn. 1, 737 A.2d 377 (1999) (trial court judgment of acquittal that was based solely on statute of limitations and that did not resolve any element of offense charged did not trigger double jeopardy); Hawaii v. Dow, 72 Haw. 56, 806 P.2d 402 (1991) (following Martin Linen and declining to “interpret the judgment of acquittal in a hypertechnieal manner, elevating form over substance”); People v. Williams, 2000 WL 33407356, 2000 Mich.App. LEXIS 968 (Mich.App.2000); Petition of the State of New Hampshire (State v. Johanson), 156 N.H. 148, 932 A.2d 848 (2007); North Dakota v. Melin, 428 N.W.2d 227 (N.D.1988); Pennsylvania v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993). Federal appellate courts have similarly applied the principle stated in Martin Linen and Scott. See, e.g., United States v. Council, 973 F.2d 251, 254 (4th Cir.1992) (when district court granted “judgment of acquittal” as to certain counts at close of prosecution case solely on grounds of discovery violation by government, that ruling was actually a “dismissal” that did not bar retrial of those counts); United States v. Gonzales, 617 F.2d 1358, 1362 (9th Cir.1980) (“judgment of acquittal” in the midst of trial was “in substance an order of dismissal” and therefore did not preclude prosecution appeal); United States v. Appawoo, 553 F.2d 1242, 1244 (10th Cir.1977) (even though the ruling was labeled a “judgment of acquittal”, “the record here demonstrates that the ruling was unrelated to any facts developed by the Government’s case”); see also United States v. Alvarez, 351 F.3d 126 (4th Cir.2003); United States v. Mackins, 32 F.3d 134, 139 (4th Cir.1994).

The Massachusetts Supreme Judicial Court was confronted with a case with facts remarkably similar to those of this case and concluded that the trial court’s action did not implicate double jeopardy. In Commonwealth v. Babb, 389 Mass. 275, 450 N.E.2d 155 (1983), the defendant was charged with several offenses related to driving under the influence of alcohol. The defendant waived a jury trial on the charges. At the conclusion of the bench trial, defense counsel moved for a “not guilty” determination on the vehicular homicide charges on the ground that the officer who had written the citations had failed to file them with the court within the time period required by a state statute. The trial judge discussed with counsel an applicable state appellate decision concerning the pertinent statute and ultimately concluded that the case should be concluded in the defendant’s favor. While the judge indicated he regarded his action as a “dismissal” of the charges, he wrote “NG” (not guilty) together with his initials on the charging documents.

On appeal, the Massachusetts Supreme Judicial Court first recited the principles derived from Scott and Martin Linen that whether a trial court’s action is an “acquittal” does not depend on the label attached to the ruling but whether that ruling resolved some or all of the factual elements of the crimes charged. 450 N.E.2d at 159. The Supreme Judicial Court found that it was clear that the trial judge had dismissed the charges solely on the basis that the police had failed to comply precisely with the statute on the filing of charging documents and the judge had not made a determination of the defendant’s guilt or innocence on those charges. Id.15 The court held that the prosecution appeal was not barred on double jeopardy grounds.16

Like Babb, this is an unusual case. This is a rare instance in which the record is absolutely clear that the trial court denied a motion for judgment of acquittal on substantive grounds, then immediately thereafter entertained a discussion of a purely procedural matter (service of process) having nothing to do with proof of guilt or innocence, received additional evidence on that issue alone, heard legal argument from counsel that concerned that issue alone and did not touch upon evidence concerning guilt or innocence, and explained its ruling based on that issue alone without any reference to evidence relating to the substance of the charges against the defendant.

By contrast, many trial court judgments on putatively procedural matters in criminal cases may be interlaced with facts related to the merits of the charges. Under Taylor, such a decision terminating the case in favor of a defendant after jeopardy has attached will likely bar further prosecution under double jeopardy principles. Thus, our holding in this case should not be taken as an invitation to prosecutors to parse every adverse judgment for a procedural aspect to serve as an appellate foothold.

Conclusion

The District Court’s decision to terminate the prosecution of the three charges against Ms. Kendall that are the subject of this appeal was not based on a resolution of “some or all of the factual elements” of the offenses charged. For that reason, the trial court’s action did not trigger the protection against double jeopardy. The State may pursue its appeal of that ruling.

Judgment of the Circuit Court for Talbot County Affirmed. Costs in this Court to be paid by the Respondent.

BELL, C.J., BATTAGLIA, and GREENE, JJ., dissent.

1 United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (Brennan, J.).

2 State v. Taylor, 371 Md. 617, 810 A.2d 964 (2002).

3 CJ § 10-305 requires that a blood test be used to determine the defendant’s blood alcohol concentration in certain circumstances.

4 The trial court apparently also relied upon State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984), which held an officer’s failure to obtain a blood sample from the defendant in the circumstances of that case allowed an inference that the results of a blood alcohol test would have been favorable to the defendant. In oral argument before this Court, the State asserted the judge had misapplied Werkheiser in granting the defense motion, although the State had not appealed that decision.

5 Although Judge Moylan was the senior member of the panel that decided the Darrikhuma case and the trial court and counsel appeared to refer to him in their discussion of the case, the author of the opinion was actually Judge Cathell, who was then a judge on the Court of Special Appeals.

6 We understand that docket sheets are used to input information into the District Court's electronic case record database.

7 Under CJ § 12-401(b), the State may appeal to the circuit court a final judgment in a criminal case in the District Court “granting a motion to dismiss, or quashing or dismissing a charging document.” The State did not seek to appeal the termination of the prosecution on the charge of driving while under the influence of alcohol and concedes that further prosecution of that charge is barred by the prohibition against double jeopardy.

8 Ms. Kendall also challenged the appeal as untimely, and accused the State of failing to properly transmit the record, not paying related fees, *484and acting in bad faith. These arguments were rejected by the Circuit Court and are not at issue here.

9 During oral argument before us, counsel for the State disputed whether the docket sheets had been made part of the record before the Circuit Court. In any event, there appears to be no dispute that the docket sheets presented to this Court are authentic, that the information recorded on them is also reflected in the District Court database, and that they are appropriately considered by this Court. See Chesek v. Jones, 406 Md. 446, 456 n. 8, 959 A.2d 795 (2008).

10 A defendant has the right to immediate appellate review of an adverse ruling concerning a double jeopardy claim. Pulley v. State, 287 Md. 406, 414, 412 A.2d 1244 (1980).

11 The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). There is no prohibition against double jeopardy in the Maryland Constitution. See D. Friedman, The Maryland State Constitu*485tion: A Reference Guide (2006) at p. 30. Rather, as explained in the text, a prohibition against double jeopardy is part of Maryland common law.

12 We are aware that the Supreme Court recently heard argument in a case concerning the prohibition against double jeopardy in the federal Constitution. See Michigan v. Evans, 491 Mich. 1, 810 N.W.2d 535 (2012), cert. granted, -U.S.--, 132 S.Ct. 2753, 183 L.Ed.2d 614 (2012). That case concerns the application of double jeopardy principles when a trial judge acquits a defendant based on a misunderstanding of the elements of the offense in question. Unlike Evans, the issue before us does not turn on the substance of the charged offenses.

13 There is no dispute that the District Court acquitted Ms. Kendall of the first of the four charges — driving under the influence of alcohol, in violation of TR § 21-902(a)(l).

14 A defendant may make a motion for judgment of acquittal at the close of the evidence for the State. Maryland Code, Criminal Procedure Article, § 6 — 104(a)(1); see also Maryland Rule 4-324 (motions for judgment of acquittal).

15 In a procedure peculiar to the Massachusetts courts, the trial judge was asked to certify facts concerning his action on the charges. In response to that order, the trial judge indicated that the use of "NG” was in error. While the Massachusetts Supreme Judicial Court relied in part on that report in reaching its holding, it indicated that its conclusions were "supported by the stipulation and the events at trial.” Commonwealth v. Babb, 389 Mass. 275, 450 N.E.2d 155, 159 (1983).

In the case before us, the District Court’s acknowledgment on the record that its ruling was actually the grant of a preliminary motion to dismiss is functionally equivalent to the Massachusetts trial court’s admission that the "NG” label was inaccurate.

16 In Babb, the Massachusetts appellate court reversed the dismissal and remanded the charges for adjudication by the trial court. In this case, the merits of the District Court ruling are not before us, but will be considered by the circuit court on remand. We offer no opinion on that topic. We decide only the appealability of the District Court ruling.