Huff v. State

ROBERT M. BELL, Judge,

dissenting.

I am in full agreement with the views expressed in part II of the majority opinion, addressing the merits of the petitioner’s double jeopardy contention. On the other hand, I am in total disagreement with the views expressed in part I. I therefore respectfully dissent from part I of the majority opinion.

The “collateral order doctrine” refers to a “small class” of orders, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225 , 93 L.Ed. 1528, 1536 (1949), which, being “final decision[s]” are deemed “final judgments” for purposes of the jurisdictional requirement in an applicable statute. Abney v. United States, 431 U.S. 651, 656-662 , 97 S.Ct. 2034, 2038-2042 , 52 L.Ed.2d 651, 657-662 (1977). To qualify as a “final judgment”, such orders must “have ‘fully disposed of the question [before the court]’ be “completely collateral to the cause of action” before the court; and be reviewable, if at all, prior to the trial of the merits, i.e., before final judgment. Abney, 431 U.S. at 658 , 97 S.Ct. at 2039 , 52 L.Ed.2d at 659 , citing and quoting Cohen, 337 U.S. at 546 , 69 S.Ct. at 1225 , 93 L.Ed. at 1536 . The issue disposed of, of course, must be an important issue. See Peat & Co. v. Los Angeles Rams Football Co., 284 Md. 86, 92 , 394 A.2d 801 (1978), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2458 , 57 L.Ed.2d 351, 357-58 (1978).

The collateral order doctrine has been recognized in Maryland and, indeed, is very much alive. Bunting v. State, *79 312 Md. 472, 476-78 , 540 A.2d 805, 806-07 (1988) and cases there cited. It has been held to be an “exception to the final judgment rule,” Parrott v. State, 301 Md. 411, 414 , 483 A.2d 68, 69 (1984), and as “treat[ing] as final and appealable a limited class of orders which do not terminate the litigation in the trial court,” Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 206 , 477 A.2d 759, 762 (1984); thus, in effect, a “collateral order” is included in the definition of “final judgment”, as used in Maryland Code (1973, 1989 Repl.Vol., 1991 Cumm.Supp.) § 12-301 of the Courts & Judicial Proceedings Article. By application of the collateral order doctrine, a defendant may immediately appeal a circuit court’s denial of his motion to dismiss for double jeopardy. Bunting v. State, 312 Md. at 477-78 , 540 A.2d at 807 .

In Abney , the Supreme Court analyzed why the collateral order doctrine rendered appealable, on an interlocutory basis, an order denying an accused’s double jeopardy defense. Such an order has all of the requisites of a “final decision”. 431 U.S. at 658 , 97 S.Ct. at 2039 , 52 L.Ed.2d at 659 . It is, first of all, a fully consummated decision, which constitutes “a complete, formal, and, in the trial court, final rejection of a criminal defendant’s double jeopardy claim.” 431 U.S. at 659 , 97 S.Ct. at 2040 , 52 L.Ed.2d at 660 ; moreover, because a defendant who makes such a claim is not addressing the merits in any way, simply the “very authority of the government to hale him into court to face trial on the charge against him”, it is “collateral to, separable from,” the principal issue in the accused’s impending criminal trial, i.e., “whether or not the accused is guilty of the offense charged,” id.; and, lastly, it is effectively reviewable only if done before a trial of the merits. As to the latter point, acknowledging that the double jeopardy clause’s only protection is not against being twice convicted of the same crime, which could be vindicated after a decision on the merits, 431 U.S. at 660 , 97 S.Ct. at 2041 , 52 L.Ed.2d at 661 , the Court noted “[i]t [also] is a guarantee against being twice put to trial for the same offense.” *80 (emphasis in original, footnote omitted) 431 U.S. at 661 , 97 S.Ct. at 2041 , 52 L.Ed.2d at 661 . “Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” (emphasis in original). 431 U.S. at 662 , 97 S.Ct. at 2041 , 52 L.Ed.2d at 662 .

Courts Art. § 12-401(a), governing appeals from the District Court, permits a party to appeal “from a final judgment entered in the District Court.” Subsection (d) provides that the appeal, unless it is a civil case involving more than $2500.00 or the parties agree to proceed on the District Court record, is tried in the circuit court de novo. Similarly, a party may appeal a circuit court decision, but only if it is “a final judgment.” Section 12-301. Although § 12-101(f) defines a “final judgment” as “a judgment, decree, sentence, order, determination, decision, or other action by a court ... from which an appeal, application for leave to appeal, or petition for certiorari may be taken,” it does not specify precisely what orders are “final judgments”. That decision, it has been held, properly belongs to this Court. Cant v. Bartlett, 292 Md. 611, 616 , 440 A.2d 388, 390 (1982). Ordinarily, a judgment is final when it denies the person aggrieved by it the means of further prosecuting or defending his or her rights or interest in the subject matter of the proceedings. Fred W. Allnutt, Inc. v. Commissioner of Labor Industry, 289 Md. 35, 40 , 421 A.2d 1360, 1363 (1980); Schultz v. Pritts, 291 Md. 1, 6 , 432 A.2d 1319, 1323 (1981).

The District Court order denying the petitioner’s motion to dismiss on double jeopardy grounds did not, as the majority points out, deny petitioner the means of further defending himself on the merits. Thus, it was not a final judgment on the merits. It was final, however, insofar as the double jeopardy defense is concerned; as to that issue, for all intents and purposes, the District Court’s order was a “final decision”. By virtue of that ruling, the petitioner could not further proceed on that issue in that court. *81 Furthermore, the ruling was as final as a similar ruling, made by a circuit court would be. As we have seen, application of the collateral order doctrine would render the circuit court ruling immediately appealable. The majority holds that the same result is not only not required, but prohibited, in the case of a District Court ruling.

Although recognizing the logic of giving the term “final judgment”, as used in § 12-401(a), the same meaning that it has in § 12-301, the majority nevertheless reaches a contrary result. It proffers several reasons for doing so. In the interest of giving “due regard to the context surrounding the appeal,” it asserts that, given the lack of an express prohibition against double jeopardy in the Maryland Constitution and the lateness of the extension of that prohibition to the States by the Fourteenth Amendment, “in the era preceding creation of the District Court of Maryland in 1971, an accused whose double jeopardy defense was denied by [a court of limited jurisdiction] could not have invoked the absolute constitutional right basis for an immediate appeal.” It also argues that there is no necessity for permitting interlocutory appeals from courts of limited jurisdiction; in order to have the full benefit of the right enjoyed by a circuit court defendant, all a District Court defendant need do is pray a jury trial, thus removing his case to the circuit court, where, if his motion to dismiss on double jeopardy grounds were denied, he would be able to appeal immediately.

Yet another reason offered by the majority relates to the nature of the de novo appeal procedure. That form of appeal, it maintains, “simply is inappropriate for resolution of the kind of issues that trigger the collateral order doctrine” since such issues, almost universally, are legal issues. Finally, the majority believes that, by refusing to apply the collateral order doctrine, this Court avoids “additional complexities” inherent in a process which permits different aspects of one case to be tried in two different courts. The “additional complexities” arise, we are informed, because there is no mechanism under the present *82 rules for bringing the two pieces together at an appropriate time, for further review.

None of the rationales offered by the majority is persuasive. That there has never been a direct appeal allowed from an interlocutory order of a trial court of limited jurisdiction on the basis of the collateral order, or constitutional issue, analysis until recently does not answer the question and, indeed, begs it. The first case, and there always must be a first case, usually defines the parameters of a claimed right. That is precisely what is being requested of us in this case. It is, I repeat, no answer that we have never had a case like it before.

There is a necessity for a collateral order appeal from the District Court if one takes seriously both the rights afforded the defendant by the District Court appeal procedure and the applicability of the double jeopardy clause to defendants whose cases happen to begin in the District Court. Every double jeopardy defense that is raised in the District Court will not be successful. In point of fact, to be cognizable, it need only be colorable. See Richardson v. United States, 468 U.S. 317, 322 , 104 S.Ct. 3081, 3084 , 82 L.Ed.2d 242, 249 (1984), citing United States v. MacDonald, 435 U.S. 850, 862 , 98 S.Ct. 1547, 1554 , 56 L.Ed.2d 18, 29 (1978). Granted that, in most cases, the defendant in the District Court who raises the double jeopardy defense will likely be entitled to pray a jury trial, but to make the lack of necessity depend upon the defendant’s exercise of that right is to require him to spend a constitutional right in order to get a ruling on a motion, the immediate reviewability of which, though not necessarily constitutionally mandated, is addressed to his enjoyment of another indisputable constitutional right, i.e., freedom from twice being tried. A defendant charged in the District Court with an offense within that court’s jurisdiction is entitled, if he or she wishes, to be tried in the District Court. That he or she has the right to remove the case to the circuit court by prayer for jury trial does not make it a necessity that he or she does so. Nor does it *83 present the kind of necessity that should render the collateral order doctrine inapplicable to District Court appeals.

A jury trial prayer removes the entire case, including the merits, to the circuit court. Thus, should the defendant’s motion to dismiss fail, he or she would be tried in the circuit court; he or she will have forever lost his or her right to be tried in the District Court. And, contrary to the majority’s suggestion, that right is not an insignificant one. Requiring the District Court defendant to pray a jury trial to obtain immediate review of the double jeopardy issue deprives the defendant who wishes to be tried in the District Court of a most significant right. Trial in the District Court, under the de novo appeal procedure, gives a defendant a free shot. He or she is enabled, by being permitted to see the State’s evidence in the District Court trial, to assess the strength of its case and, in the event he or she chooses to put the State to its proof a second time in the circuit court, to prepare for any aspect of it as to which he or she was previously unaware or unprepared. Aside from the free shot or discovery reasons, a defendant may wish his or her case tried in the District Court because the disposition he or she receives there may be more favorable to him than one he or she could expect to receive in the circuit court.

The majority’s citation to Block v. State, 286 Md. 266 , 407 A.2d 320 (1979) as illustrative of the point that there is no necessity for an immediate appeal from the District Court does not, in my view, have that effect. All that case illustrates is that the defendant in that case chose to follow the scenario the majority endorses: he did not attempt to appeal the District Court’s order pursuant to the collateral order doctrine. Since he did not raise the issue now before us, that case has no persuasive effect.

Nor is the majority’s rationale that a de novo appeal is inappropriate for resolution of collateral order type issues persuasive. Whatever merit that proposition has, considered in a vacuum, it has absolutely none when it is placed in the context of this appeal. An appeal of the denial of the *84 motion to dismiss will involve nothing more than has previously occurred at the District Court level — argument on the motion. No trial either at the District Court level or the circuit court level will be required, simply an argument on the law, a fact that the majority specifically recognizes. There is no reason, therefore, for us to concern ourselves with any other scenario.

I have striven mightily, but without success, to determine what the majority means by “additional complexities.” If a true collateral order doctrine appeal were permitted, any “additional complexities” associated with it would necessarily be resolved prior to the trial on the merits in the District Court. And, of course, if the double jeopardy defense were found to have merit, i.e., the defendant prevailed, there would never be any necessity of a trial; the case would not need to be remanded or further reviewed. In any event, even when the defendant’s double jeopardy appeal is unsuccessful and a trial on the merits is held, there still would never be an occasion to “further review” the appellate phase of the case; the collateral order appeal would have been completely resolved before the merits could be reached. Consequently, I fail to see how the “additional complexities” argument militates against a collateral order doctrine appeal from a District Court ruling on a motion to dismiss on double jeopardy grounds.

Whatever may be the merits of an analysis to determine whether an immediate appeal, on the basis of the collateral order doctrine, is constitutionally mandated, 1 whenever a *85 double jeopardy defense is denied, in Maryland, there is a well-established appellate mechanism. And that mechanism recognizes the role that the collateral order doctrine plays in assuring that important rights, constitutionally based, or otherwise, are vindicated in a timely fashion, before they are lost. See Bunting v. State, 312 Md. at 476-78 , 540 A.2d 805 ; State v. Hogg, 311 Md. 446 , 535 A.2d 923 (1988), Harris v. Harris, 310 Md. 310 , 529 A.2d 356 (1987), Yamaner v. Orkin, 310 Md. 321 , 529 A.2d 361 (1987), Parrott v. State, 301 Md. 411, 424-25 , 483 A.2d 68, 75 (1984); Public Service Comm ’n v. Patuxent Valley, 300 Md. 200 , 477 A.2d 759 (1984), Clark v. Elza, 286 Md. 208, 211-213 , 406 A.2d 922, 924-25 (1979), Peat & Co. v. Los Angeles Rams, 284 Md. at 91-92 , 394 A.2d at 804 . Furthermore, this Court has provided a meaningful review of the denial of a double jeopardy defense, as the majority acknowledges, by interpreting “final judgment”, as used in Courts Article § 12-301, pertaining to circuit court appeals, to include an order denying a motion to dismiss on the ground of double jeopardy. Bunting, 312 Md. at 477-78 , 540 A.2d 805 . Consequently, we need not address whether there is a constitutional right to an immediate appeal from the denial of a motion to dismiss on double jeopardy grounds; we need only determine whether, given the appellate scheme in Maryland, interpreting “final judgment,” as used in Courts Article § 12-401(a), to exclude an order denying a motion to dismiss on double jeopardy grounds, is violative of equal protection or due process of law.

*86 There can be no doubt but that the denial of a motion to dismiss a prosecution on double jeopardy grounds is a collateral order from which a collateral order doctrine appeal would lie. See Abney, supra. Indeed, the majority recognizes that this is so. It maintains, however, that immediate appealability, applicable to circuit court appeals, has no role to play in district court appeals. There is, furthermore, it suggests, a rational basis for distinguishing between such appeals. Specifically, the majority reiterates the reasons it proffered when addressing the applicability of the collateral order doctrine to de novo appeals. That it does, does not render those reasons any more persuasive.

I agree that it is a legitimate state interest to seek “to enable persons who could not afford a transcript of the record the opportunity to have adverse judgments rendered by the District Court subject to a second look.” That legitimate interest does not, however, negate, or even address, the question whether there should be an immediate appeal from an order by the District Court’s denying a motion to dismiss on double jeopardy grounds. And it certainly provides no rational basis for interpreting “final judgment” one way when construing the circuit court appeal provision and interpreting it another way when construing the district court appeal provision. Permitting a second look at a critical issue, even if it is one required to be resolved before the merits are reached, is consistent with the purpose of the de novo appeal procedure. It is not, in any event, inconsistent.

The majority also denies that there is a due process violation. Again its argument is premised on the availability to a litigant in the District Court, through the jury trial prayer, of the right to obtain an immediate appeal from a ruling on a nonfrivolous double jeopardy defense prior to being tried. To this argument, I again ask, at what cost? The immediate appeal may be available, but only by removal of the case to the circuit court. Thus, it is one step removed, i.e., the defendant must first pray a jury trial and remove the case from the District Court to the circuit court. *87 Only then may he or she move to dismiss on double jeopardy grounds and, obtaining an unfavorable ruling, take an immediate appeal to the Court of Special Appeals. This is the only rationale the majority provides for the different treatment. It does not suggest that a circuit court litigant must give up the right to trial on the merits in the circuit court as a prerequisite to review, in a meaningful and timely way, when the double jeopardy question is presented for the first time in that court. Moreover, the majority fails to discuss, and pointedly so, what the District Court litigant must give up to obtain the immediate appeal benefit. More to the point, it does no more than denigrate a litigant’s desire to preserve his or her right to trial on the merits in the District Court, if his or her double jeopardy defense fails. As previously mentioned, I believe the right to be tried on the merits in the District Court to be significant and certainly worthy of preservation. This is especially the case when the issue may be resolved by reconciling the interpretation of the term “final judgment,” as used in different statutes.

Nor am I impressed by the majority’s “practical” argument that the “result of not providing immediate appeals in District Court cases is that the case ordinarily can be tried and decided on the merits in less time than it would take for the clerk of the District Court to transmit the case to a clerk of a circuit court, had the District Court ruling on motion been immediately appealable.” Assuming that that is true, the argument nevertheless misses the point; it is not how much time the District Court proceedings will take, rather the question is whether a District Court litigant deserves an opportunity to vindicate his double jeopardy rights to the same extent as a circuit court litigant.

Finally, the majority suggests that the cases in the District Court, being minor ones, “[d]o not ordinarily subject the defendant to ‘embarrassment, expense and ordeal’ or compel the defendant ‘to live in a continuing state of anxiety and insecurity’ to the degree contemplated in Green v. United States, 355 U.S. [184,] 187, 78 S.Ct. at [221,] 223 *88 [ 2 L.Ed.2d 199 ] [ (1957) ].” When the case is that serious, it posits, the defendant may pray a jury trial and obtain the immediate and direct appeal. First of all, the Court in Green did not quantify the extent of the embarrassment, expense, ordeal, state of anxiety, or insecurity that must exist before the State’s attempts to convict its citizen will not be permitted to continue. Rather, the thrust of Green is that the State’s power should be curtailed so as to insulate one faced with prosecution, for whatever charge, from being placed in the situation of the defendant in Green . Furthermore, where the majority gets the notion that it is the nature of the prosecution, rather than the fact of prosecution, that triggers the need for double jeopardy protection is beyond me. And, because it is the fact of prosecution that triggers the double jeopardy protection, it follows inexorably that an opportunity to avoid that prosecution before a trial is held is minimally required. Should, however, the attempt to avoid a second trial be unsuccessful and the defendant does not otherwise elect, I would require that trial to be held in the forum in which the prosecution arose.

I reiterate, I dissent.

. In Ex Parte Robinson, 641 S.W.2d 552 (Tx.Crim.App.1982), it was held that “There is a Fifth Amendment right not to be exposed to double jeopardy, and that it must be reviewable before that exposure occurs.” Id. at 555 . To reach that conclusion, the court interpreted Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) as being grounded on “the constitutional right not to be exposed to double jeopardy, which would be significantly undermined by postponement of review until after conviction." 641 S.W.2d at 555 , quoting United States v. Hollywood Motor Car Company, 458 U.S. 263, 266 , 102 S.Ct. 3081, 3083 , 73 L.Ed.2d 754, 757 (1982). State v. Choate, 151 Ariz. 57 , 725 P.2d 764 (Ariz.App.1986), reached the same result by *85 citing Abney , but without further analysis. See also Nalbandian v. Superior Court, 163 Ariz. 126 , 786 P.2d 977, 981 (Ariz.App.1989) (the court disagreed with that portion of Choate that held that the double jeopardy claim could be heard on direct appeal); Petition of Lucas, 246 Kan. 486 , 789 P.2d 1157, 1158 (1990); Application of Berkowitz, 3 Kan.App.2d 726 , 602 P.2d 99, 102-03 (1979); Ex Parte Loffland, 670 S.W.2d 390, 392 (Tex.App.1984). In Spradling v. Texas, 455 U.S. 971, 972-74 , 102 S.Ct. 1482, 1482-84 , 71 L.Ed.2d 686, 686-87 (1982) (Mr. Justice Brennan, dissenting from the denial of certiorari, characterized “double jeopardy claims not considered prior to trial” as having “significant constitutional overtones.”