Petition for Writ of Certiorari — Maryland v. Ferrell
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MAR 12 1990
No. QOSEPH F. SAPNIOL, JR.
CLERK
as
——_
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1989
STATE OF MARYLAND,
Petitioner,
We
AVERY V. FERRELL,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
GarRY E. BaIr*
VALERIE J. SMITH
Assistant Attorneys General
200 Saint Paul Place
Baltimore, Maryland 21202
(301) 576-6422
Counsel for Petitioner
* Counsel of Record
ART RGN NE A cme a
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTION PRESENTED
Where the State has consolidated all charges in a
single prosecution and the jury acquits on one charge,
but is unable to agree on another charge sharing a
common issue of ultimate fact, do the principles of
collateral estoppel embodied in the Fifth Amend-
ment’s Double Jeopardy Clause bar retrial of the un-
decided charge?
ii
PARTIES
The caption contains the names of all the parties
below. '
ill
TABLE OF CONTENTS
Page
SUE PP UMEEEEIU REGED cecocssocccecevesscosccnceescncccccoeess i
sie cciccncerssivnsserteverscesertsescesseosswes ii
ca vesrentncigevessovsccererescsecevecess 1
STATEMENT OF JURISDICTION ...................ccceeeee 2
CONSTITUTIONAL PROVISION INVOLVED ............ 2
STATEMENT OF THE CASE .............cccccccsscsssssseeees 2
REASONS FOR GRANTING THE WRIT ................... 5
I. The Ferrell Decision Misapplies the Collat-
eral Estoppel Principles of Ashe v. Swenson,
Conflicts with Related Decisions of this
Court, and Produces the Arbitrary Result of
an Implied Acquittal when the Jury Refused
EES 5
II. A Conflict among the State and Federal
Courts Exists on the Applicability of Collat-
eral Estoppel Outside the Context of Seria-
A 10
Eis inhapronde ctcesccsucerevevestoseeroeoseseseuees 12
ET nalinsisbuinekevelsecersserseccecesvereseeuserersseuees la
iv
TABLE OF AUTHORITIES
Cases Page
Arizona v. Washington, 434 U.S. 497 (1978) ........ 8
Ashe v. Swenson, 397 U.S. 486 (1970) ..............006 passim
Cosgrove v. United States, 224 F.2d 146 (9th Cir.
EDD <cnsniseicadcdinintauntesidacumiailinaianasviadiaibiaivsielenieie 10
DeSacia v. State, 469 P.2d 369 (Alaska 1970) ...... 12
Dowling v. United States, 493 U.S. __, 110 S.Ct.
Se CO cic aiacrreectesicceceedc estates 8
Dunn v. United States, 284 U.S. 390 (1932) ......... 8
Ferrell v. State, 318 Md. 235, 567 A.2d 937
CG, o0ctinnpscasnivedidecedcocnianvininionmanensattianeiineresen passim
Ferrell v: State, 73 Md. App. 627, 586 A.2d 99
CIID sneccsrnconccthsedsicttevebaiiacinaen a aaaTiedaen 1,4
Kentucky v. Stincer, 482 U.S. 730 (1987) ...........+.. 5
Ohio v. Johnson, 467 U.S. 493 (1984) ................... 7,12
Petitions of Shotwell, 4 Kan. App. 2d 382, 607 P.2d
ee sence cicdabinaceiecaamnaucebanaemariannvededinn 11
Richardson v. United States, 468 U.S. 317
SED cssicsnncdctlasticecubadaom beta ncimacinintvtenosersn 8
Sealfon v. United States, 332 U.S. 575 (1948) ....... 6
Standefer v. United States, 447 U.S. 10 (1980) ..... 8
State v. Dominique, 619 S.W.2d 782 (Mo. Ct. App.
ED cdectestclanconsssicecaccueidadensibadsduiptneedinaiaensinvioias 11
State v. Esposito, 148 N.J. Super. 102, 371 A.2d
Se Se eitasarnccsrtetccescepecicataesnieiialinennetice 11
State v. Roller, 29 N.J. 339, 149 A.2d 238
CRIN. Aiicssscio-secassaceouusiaieduenesaveneiciengadeiauiaaoaiaionns 11
State v. Triano, 147 N.J. Super. 474, 371 A.2d 734
SITE ccicvchasssasscaunversuvumbipadedasiaianeinedniceaentieemuens 11
United States ex rel. Triano v. Superior Court, 393
F.Supp. 1061 (D. N.J.), affd, 523 F.2d 1052
(8d Cir. 1975), cert. denied, 423 U.S. 1056
CRITE cischsecaeuacanasaceeledcenpsnmanauabaenandanameghiaassensuianin 10,11
Table of Authorities Continued
Page
United States v. Davis, 369 F.2d 775 (4th Cir. 1966),
cert. denied, 386 U.S. 909 (1967) ................00 11
United States v. Dotterweich, 320 U.S. 277
IIE schicugaderebhcileaualieicudcsdainibinceotabanmadiasauleadaine 8
United States v. Flowers, 255 F.Supp. 485 (E.D.N.C.
IIIs iasis iiecaivacceateedonstitsnacelaaaGeasiiadacaaivaa tania ealialecccriacs 10,11
United States v. Gornto, 792 F.2d 1028 (11th Cir.
II aiiccks sabseciubitipccosicdanasaasanabianenamisabbadeaie amie taadabitinncs ia 10
United States v. Kenney, 236 F.2d 128 (3d Cir.),
cert. denied, 352 U.S. 894 (1956) ................... 10
United States v. Larkin, 605 F.2d 1360 (5th Cir.
1979), modified on other grounds, 611 F.2d 585
(5th Cir.), cert. denied, 446 U.S. 939 (1980) .. 10
United States v. McGowan, 385 F.Supp. 956 (D. N.J.
SUITE hss ssnsostanragdionend vesldassdsendahshenlecahaanetomiettetedamoa teens 10,11
United States v. Mespoulede, 597 F.2d 329 (2d Cir.
a 10
United States v. Mulherin, 529 F.Supp. 916 (S.D.
Ga. 1981), aff'd, 710 F.2d 731 (11th Cir.), cert.
denied, 464 U.S. 964 (1983), cert. denied, 465
Bes) I ciiicciactacusstbeosinnleieaatieadisnevciseetaniveaes 11
United States v. Nelson, 574 F.2d 277 (5th Cir.),
cert. denied, 489 U.S. 956 (1978) ................... 12
United States v. Oppenheimer, 242 U.S. 85
IIE cacon dssascisiccenekeicueibantncg Sacuinies cattate aoa airanademneucaatiies 6
United States v. Perez, 22 U.S. (9 Wheat.) 579
TERT a SS SAME RP Ee PRC ore ARSENE 8
United States v. Powell, 469 U.S. 57 (1984) .......... 8
United States v. Smith, 337 A.2d 499 (D.C.
TTI scitiaiinatesailestcsiciindisnsiieetbanmeicgemantatandiibaesnindes 11
United States v. Venable, 585 F.2d 71 (3d Cir.
DPT ceickcucicinstucciceasseniniiessnasiccnapatensinncandadiabsamieiadtdaaes 12
Table of Authorities Continued
Page
Constitutional Provision
United States Constitution
I assuntine passim
Statute
United States Code
i cbimiaerbusadecteaes 2
ee ee eS
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1989
STATE OF MARYLAND,
Petitioner,
Ve
AVERY V. FERRELL,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
Petitioner, the State of Maryland, respectfully re-
quests that a writ of certiorari issve to review the
judgment and opinion of the Court of Appeals of
Maryland.
OPINIONS BELOW
The reported opinion of the Court of Appeals of
Maryland, Ferrell v. State, 318 Md. 235, 567 A.2d
937 (1990), reversing Respondent’s convictions, is re-
produced in Appendix A (1la-25a).
The reported opinion of the Court of Special
Appeals of Maryland, Ferrell v. State, 73 Md. App.
627, 5386 A.2d 99 (1988), affirming Respondent’s con-
victions, is reproduced in Appendix B (26a-56a).
STATEMENT OF JURISDICTION
The opinion of the Court of Appeals of Maryland
reversing Respondent’s convictions was filed on Jan-
uary 9, 1990. Jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Amendment V provides
in pertinent part: ‘“‘No person shall... be subject for
the same offense to be twice put in jeopardy of life
ae
STATEMENT OF THE CASE
While standing at a Baltimore City bus stop in the
early morning hours of April 10, 1985, three women
and a child were robbed by a man brandishing a
handgun. The man wore a ski mask and a three-
quarter length gray coat. He took the women’s purses
and the child’s school bag. (E.210-219, 239-245, 247-
263).1 He prevented one woman’s escape by firing the
handgun in her direction. (E.219, 244, 259). Another
woman, who followed the robber as he fled, saw him
run into an apartment complex on Swann Avenue,
stripping off his outer clothing as he ran. (E.219-223).
Baltimore City police responded a few minutes later
and began searching the area of the apartment com-
plex, which was located about a block from the bus
stop. (E.92-97, 264-268). Officer Wagner saw
Respondent Avery V. Ferrell emerge from one of the
buildings. Ferrell was wearing a suit; Wagner ob-
1 References to the record herein are to the Joint Record
Extract filed in the Court of Appeals of Maryland.
served that he carried a shopping bag in his hand
and a gray coat on his arm. (E.268-271). Ferrell
quickly walked away when he saw Wagner. Ferrell
then dropped the bag and ran behind an apartment
building. (E.272-276). Ferrell soon reappeared and en-
tered the apartment building located at 400 Swann
Avenue. (E.99-101, 277). Officer Brown followed and
stopped Ferrell as he was about to enter a first floor
apartment. (E.99-101).
A search of the shopping bag disclosed the victims’
purses, a ski mask, a glove, and a handgun containing
one spent cartridge and five live rounds. At the bot-
tom of the bag were papers belonging to Ferrell.
(E.104, 273-280). The victims, who had been trans-
ported to Ferrell’s location, were unable to identify
Ferrell as the masked robber. Several of them, how-
ever, did identify Ferrell’s gray coat as looking like
the one worn by the robber. (E.102-104, 216-218, 247-
249, 281).
Four criminal informations—one for each victim—
were filed, each charging Ferrell with eight counts,
including robbery with a deadly weapon, use of a
handgun in the commission of a crime of violence,
assault with intent to rob, and lesser offenses. The
State consolidated all the charging documents for
trial. In November of 1985, Ferrell was convicted on
six counts in each information, but was later granted
a new trial. At a retrial in June of 1986, the jury
hung on all counts and a mistrial was declared. (28a).
At a third trial in August, 1986, the State pressed
only robbery with a deadly weapon (four counts, one
for each victim) and use of a handgun in the com-
mission of a crime of violence (one count). This time
the jury acquitted Ferrell on the handgun count, but
was unable to agree on the counts charging robbery
with a deadly weapon. (E.567-570; 29a, 31a-32a).
Prior to the commencement of retrial in November,
1986, Ferrell moved to dismiss the robbery counts on
grounds of double jeopardy and collateral estoppel.
He argued that the only disputed issue at the third
trial was his criminal agency, and that the court was
required to find that the third jury’s acquittal on the
handgun count resulted in implicit acquittals on the
robbery counts that the third jury was unable to de-
cide. The trial court denied the motion. (E.2-21).
Ferrell was retried and convicted on four counts of
armed robbery. He reasserted the collateral estoppel
claim on appeal before the Court of Special Appeals
of Maryland. That court affirmed Ferrell’s convic-
tions, applying the rational basis test of collateral
estoppel as enunciated by this Court in Ashe v. Swen-
son, 397 U.S. 436 (1970). (82a-34a).?
Reviewing the case on certiorari, the Court of
Appeals of Maryland reversed, holding that retrial on
the mistried counts violated Ferrell’s rights under the
Fifth Amendment. (5a-23a).3 The court rejected the
2In reaching its decision, the Court of Special Appeals noted
that Ferrell failed to provide a transcript of the third trial as
required for a proper application of the rational basis test, and
concluded that this omission rendered it difficult to conduct the
analysis urged by Ferrell. (33a-34a). Because the State of Mary-
land requests this Court to review only the question whether
the collateral estoppel principles of the Fifth Amendment should
ever apply in cases not involving seriatim prosecutions, the ab-
sence of a complete transcript of the third trial is immaterial.
3 Although the Court of Appeals noted that collateral estoppel
as embodied in the double jeopardy prohibition is an aspect of
State’s argument that collateral estoppel was inappli-
cable outside the context of seriatim prosecutions and
was never intended to preclude retrial of counts a
jury could not decide when the same jury acquitted
the defendant on another count involving the same
issue of ultimate fact. (13a-23a). It also rejected the
State’s argument that a rational basis for the jury’s
action existed. (5a-13a). The dissenting judge found it
“absolutely illogical’’ to utilize the doctrine of collat-
eral estoppel to conclude the third jury found Ferrell
was not the robber. Had it so found, he pointed out,
the jury would have acquitted Ferrell of armed rob-
bery, just as it had acquitted him on the handgun
counts. (23a-25a).
REASONS FOR GRANTING THE WRIT
I. The Ferrell Decision Misapplies the Collateral Es-
toppel Principles of Ashe v. Swenson, Conflicts with
Related Decisions of this Court, and Produces the
Arbitrary Result of an Implied Acquittal when the
Jury Refused to Acquit.
In Ashe v. Swenson, this Court first held that the
federal rule of law known as collateral estoppel is
embodied in the Fifth Amendment prohibition against
both the Fifth Amendment of the United States Constitution
and Maryland’s common law, and its opinion occasionally makes
reference to state court decisions, it is clear that the court
believed federal law—in particular Ashe v. Swenson—compelled
its conclusion. At no point in its decision did the court indicate
that Maryland law provided Ferrell with rights distinct from,
or broader than, those of the Fifth Amendment. Accordingly,
the Maryland high court’s decision does not rest on an adequate
and independent state ground. Kentucky v. Stincer, 482 U.S.
730, 735 n.7 (1987).
double jeopardy.‘ The primary purpose of Ashe was
to protect a defendant from the government’s stra-
tegic parcelling of multiple counts arising from a sin-
. gle criminal transaction into separate, sequential
prosecutions, in order that it might hone or strengthen
its evidence, spread its risk among several juries, or
just wear down the defendant. The seriatim prose-
cutions that occurred in Ashe allowed a realistic and
rational application of the rule of collateral estoppel,
which, as there re-defined, ‘‘means simply that when
an issue of ultimate fact has once been determined
by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future
lawsuit.’’ 397 U.S. at 443 (emphasis supplied). Be-
cause’ the only question before the first jury in that
case was Ashe’s participation in a robbery, and be-
cause that jury had unanimously acquitted Ashe on
all counts, this Court could confidentiy conclude that
the jury had unanimously decided that Ashe had not
robbed either the victim at issue in the first case or
any other person who was in the company of that
victim. Id. at 444-46.
The contextual underpinnings of the collateral es-
toppel rule—a strategic seriatim prosecution of counts
and the presentation of facts from which a reviewing
court can confidently conclude what, if any, ultimate
facts were fully and finally litigated in the first law-
suit—were fundamental to Ashe’s purpose, its fair-
ness, and its practical applicability. This cannot be
doubted in view of the more recent pronouncement
‘When Ashe was decided, collateral estoppel had been a rule
of federal criminal law for some years. See Seaifon v. United
States, 332 U.S. 575 (1948); United States v. Oppenheimer, 242
U.S. 85 (1916).
of now Chief Justice Rehnquist for a majority of this
Court in Ohio v. Johnson, 467 U.S. 493, 500 n.9
(1984), that ‘“‘where the State has made no effort to
prosecute the charges seriatim, the considerations of
double jeopardy protection implicit in the application
of collateral estoppel are inapplicable.’’ Applied out-
side of that factual context, the collateral estoppel
doctrine clashes head-on with established Fifth
Amendment law allowing retrial after mistrial and the
inconsistent resolution of counts by a jury in the same
case. It ceases to protect the defendant and instead
produces the irrational result of undeserved acquit-
tals. The Court of Appeals’ decision in this case, which
illustrates these very problems, provides the Court
with the opportunity to answer the question left open
in Ashe, and over which dispute has been generated
in the state and federal courts: Should a jury’s de-
termination of one count be allowed to collaterally
estop continued prosecution of a mistried count in the
same case?
Consistent with the goal of Ashe, the State of Mary-
land consolidated all counts against Ferrell into a sin-
gle prosecution and tried them together. It made no
attempt to harass Ferrell or increase its chances to
convict him through separate indictments or a se-
quential prosecution of the charges. The jury chose
to acquit Ferrell of the handgun count, but refused
to acquit or convict him of the robbery counts. Ig-
noring Ashe’s contextual underpinnings, the Court of
Appeals of Maryland held that collateral estoppel pre-
cluded retrying Ferrell on the undecided charges.
The Ferrell court’s extension of the doctrine of col-
lateral estoppel to these facts directly conflicts with
the State’s right under this Court’s decisions since
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824), to retry counts following a mistrial resulting
from jury deadlock. See Richardson v. United States,
468 U.S. 317, 324 (1984); Arizona v. Washington, 434
U.S. 497, 509 (1978). Richardson clearly reaffirmed
the maxim that jeopardy on a mistried count does
not terminate, but rather continues through retrial,
468 U.S. at 325-26, and that the government’s right
to “ ‘one complete opportunity to convict those who
have violated its laws’ ’’ means the defendant may be
retried on mistried counts until resolution of the case
by a verdict from a jury, id. at 324-26, quoting Ari-
zona v. Washington, 434 U.S. at 509. The Maryland
court’s finding of an acquittal on the mistried counts
prior to verdict is the type of appellate intervention
condemned in Richardson.
Further, this Court has never retreated from the
view that juries may legitimately act through com-
promise, lenity, or mistake, and that any resulting
inconsistent resolution of charges is insulated from
attack on the basis of collateral estoppel or other
constitutional grounds. See Dowling v. United States,
493 U.S.__., 110 S.Ct. 668 (1990); United States v.
Powell, 469 U.S. 57 (1984); Standefer v. United States,
447 U.S. 10 (1980); United States v. Dotterweich, 320
U.S. 277 (19438); Dunn v. United States, 284 U.S. 390
(1932). This is so because when it is known “‘the same
jury reached inconsistent results[,]... principles of
collateral estoppel—which are predicated on the as-
sumption that the jury acted rationally and found cer-
tain facts in reaching its verdict—are no longer
useful.”’ United States v. Powell, 469 U.S. at 68. The
Ferrell decision cannot be reconciled with these broad
principles. Thus, review of the instant case will permit
this Court to harmonize the doctrine of collateral es-
toppel with the related concepts of retrial after mis-
trial and jury compromise.
For yet another reason, this Court should review
the decision of the Court of Appeals of Maryland. As
this case aptly demonstrates, application of Ashe out-
side its factual context is irrational. It was substan-
tially certain that the jury in Ashe decided that the
defendant there was not a criminal agent in the rob-
bery of any of the victims. Here, just the opposite is
true. It is substantially certain the jury did not decide
the issue of criminal agency in the armed robberies
in Ferrell’s favor. If it had, it would have acquitted
him. Yet, the Maryland court holds that the rational
basis test of collateral estoppel be irrationally applied
to ignore the jury’s consideration and rejection of an
acquittal.
The Ferrell court’s application of the Ashe doctrine
thus ignores the directions of this Court that collat-
eral estoppel be applied with “‘realism.”’ Ashe v. Swen-
son, 397 U.S. at 444. Why should Ferrell be entitled
to a presumption of juror rationality where, unlike
the Ashe situation, the court knows the jury acted
inconsistently? How can it be unfair to recognize the
fact that the jury did not acquit the defendant? How
can it be fair to the government to presume the jury
did that which it did not do? Judge McAuliffe, dis-
senting below, aptly points out the illogic of such a
rule. (23a-25a). As here applied, collateral estoppel is
arbitrary and effects a serendipitous windfall acquittal
for Ferrell.
10
II. A Conflict among the State and Federal Courts Ex-
ists on the Applicability of Collateral Estoppel Out-
side the Context of Seriatim Prosecutions.
Because juries frequently render verdicts like that
rendered by Ferrell’s third jury, the lower state and
federal courts have repeatedly been presented with
the same collateral estoppel question that was ad-
dressed by the Maryland Court of Appeals. Like the
majority and dissenting opinions in this case, the lower
court decisions sharply diverge on the issue whether
and why collateral estoppel should apply. Two early
precedents that blindly apply collateral estoppel in
this factual context without explanation are United
States v. Kenney, 236 F.2d 128, 129-30 (3d Cir.), cert.
denied, 352 U.S. 894 (1956), and Cosgrove v. United
States, 224 F.2d 146, 150 (9th Cir. 1954). These de-
cisions have been the basis for later cases applying
collateral estoppel in this context. See United States
v. Mespoulede, 597 F.2d 329, 336 (2d Cir. 1979);
United State v. Flowers, 255 F.Supp. 485, 488
(E.D.N.C. 1966). Accord United States v. Gornto, 792
F.2d 1028, 1029-36 (11th Cir. 1986); United States v.
Larkin, 605 F.2d 1360, 1369-70 (5th Cir. 1979), mod-
ified on other grounds, 611 F.2d 585 (5th Cir.), cert.
denied, 446 U.S. 939 (1980); United States ex rel.
Triano v. Superior Court, 393 F.Supp. 1061, 1067-
68 (D. N.J.), affd, 523 F.2d 1052 (8d Cir. 1975), cert.
denied, 423 U.S. 1056 (1976).
Other courts have said that collateral estoppel is
inapplicable when a single jury acquits on some counts
and is unable to reach a verdict on other counts in-
volving a common issue of fact. See United States v.
McGowan, 385 F.Supp. 956, 959-61 (D. N.J. 1974);
eee Tee ‘se-talae hints ann agaaaaehsaldll
11
United States v. Smith, 337 A.2d 499, 501-03 (D.C.
1975); Petitions of Shotwell, 4 Kan. App. 2d 382, 607
P.2d 83, 87-88 (1980); State v. Dominique, 619 S.W.2d
782, 786 (Mo. Ct. App. 1981) (dictum); State v. Es-
posito, 148 N.J. Super. 102, 371 A.2d 1273, 1275-76
(1977), relying in part on State v. Roller, 29 N.J. 339,
149 A.2d 238, 241-44 (1959); State v. Triano, 147 N.J.
Super. 474, 371 A.2d 734, 734-35 (1974).§
Finally, some federal courts, though applying the
doctrine of collateral estoppel, have criticized and
questioned the propriety of doing so when a jury re-
turns acquittals on some counts, but is unable to de-
cide others. See United States v. Mulherin, 529
F.Supp. 916, 931-39 (S.D. Ga. 1981), affd, 710 F.2d
731 (11th Cir.), cert. denied, 464 U.S. 964 (1983), cert.
denied, 465 U.S. 1034 (1984) (court could not ignore
indication that there was not a failure of proof on
undecided counts; the complexity of mixed verdicts
on multicount indictments reveals impracticality, if not
infeasibility of use of rational basis test in this situ-
ation); United States v. Davis, 369 F.2d 775, 780 (4th
Cir. 1966), cert. denied, 386 U.S. 909 (1967) (need to
invoke protections of collateral estoppel in this situ-
ation, if it exists at all, less compelling than in suc-
cessive prosecutions); United States v. Flowers, 255
F.Supp. at 488-89 (application of collateral estoppel
in this context irrational and less sound than recog-
nizing reality of jury inconsistency).®
5 Interestingly, the Esposito and Triano decisions from New
Jersey conflict with the position taken by the United States
District Court for the District of New Jersey in United States
ex rel. Triano, which is in turn inconsistent with the same fed-
eral court’s decision in McGowan.
*The controversy has generated conflicts on another issue.
12
These conflicting interpretations of the collateral
estoppel rule demonstrate the need for this Court to
resolve an important and recurring constitutional
question. This case presents that opportunity.
CONCLUSION
Because the State of Maryland here ‘‘made no ef-
fort to prosecute the charges seriatim, the consider-
ations of double jeopardy protection implicit in the
application of collateral estoppel are inapplicable.”
Ohio v. Johnson, 467 U.S. at 500 n.9. By detaching
the Ashe rule from its factual moorings and extending
it to apply to multiple counts in a single prosecution,
the Maryland Court of Appeals has given Ferrell the
benefit of acquittals even though Ferrell’s jury clearly
did not do so. This application of Ashe beyond its
contextual limits transforms the collateral estoppel
principles embodied in the Double Jeopardy Clause
from a shield to a sword the defendant may use to
block retrial upon a charge for which jeopardy never
The Maryland court and others broadly construe Ashe to mean
that a second jury may never decide an issue inconsistently with
a prior jury’s factual finding, even where all counts are joined
in a single prosecution. Under that theory, if a defendant is
convicted of one count and inconsistently acquitted on another,
retrial following a reversal of the conviction for trial error might
be barred. Not surprisingly, courts have come to different con-
clusions on whether Ashe precludes retrial in this situation also.
See, e.g., United States v. Venable, 585 F.2d 71, 75-77 (3d Cir.
1978); United States v. Nelson, 574 F.2d 277, 283 (5th Cir.),
cert. denied, 439 U.S. 956 (1978); DeSacia v. State, 469 P.2d
369, 378-81 (Alaska 1970). Disallowing retrial of an inconsistent
conviction arising from sufficient evidence, sirnply because the
defendant has proven a trial error on appeal, illustrates the
absurdity of extending Ashe outside the context of sequential
prosecutions.
ee ee Tt a ee Te, MENTS Tn Le
sendite een eatin te te Lad ee Pe ee jadi gs
13
terminated, and of which he was never exonerated,
a result not intended by this Court. By correcting the
Ferrell court’s error, this Court can right that aber-
rant result, clarify for the state and federal courts
the limits of collateral estoppel’s application under the
Fifth Amendment, and advance society’s interest in
giving the government a complete opportunity to
prosecute its criminal offenders.
Respectfully submitted,
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
GARY E. BAIR*
VALERIE J. SMITH
Assistant Attorneys General
200 Saint Paul Place
Baltimore, Maryland 21202
(301) 576-6422
Counsel for Petitioner
* Counsel of Record
March 12, 1990
4
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CONTENTS OF APPENDIX
Page
Appendix A:
Reported opinion of the Court of Appeals of Mary-
land, Avery V. Ferrell v. State of Maryland,
No. 18, September Term, 1988 (filed January
ios SII csbatistinank is iudsedehndsadcamscindadtvgubenidteeesinneescas: la
Appendix B:
Reported opinion of the Court of Special Appeals
of Maryland, Avery V. Ferrell v. State of Mary-
land, No. 213, September Term, 1987 (filed
ETE TIE sincerecticetetedentsciacboraceuvderentanves 26a
la
APPENDIX A
IN THE COURT OF APPEALS OF MARYLAND
No. 13
September Term, 1988
AVERY V. FERRELL
v.
STATE OF MARYLAND
Murphy, C.J.
Eldridge
Cole
Rodowsky
McAuliffe
Adkins
*Blackwell,
JJ.
Opinion by Eldridge, J.
McAuliffe, J., dissents
Filed: January 9, 1990
This criminal case involves the applicability of the doc-
trine of collateral estoppel where a defendant was acquit-
* Blackwell, J., now retired, participated in the hearing and confer-
ence of this case while an active member of this Court; after being
recalled pursuant to the Constitution, Article IV, Section 3A, he also
participated in the decision and adoption of this opinion.
2a
ted on one count of a two-count charging document, where
the jury was unable to agree on the other count, where
the disputed issue under both counts was the same, and
where the defendant was subsequently retried for the of-
fense on which the jury had previously been unable to
agree.
The pertinent facts, as disclosed by the prosecution’s
evidence, are as follows. On the morning of April 10, 1985,
three women and a school girl were robbed at gunpoint
by a lone man carrying a handgun and wearing a ski mask,
a blue hooded sweatshirt, a long gray coat and tennis
shoes. During the course of the robbery, one of the victims
attempted to flee the scene at which time the robber fired
a shot from the handgun and grabbed the fleeing victim’s
pocketbook. As the robber fled the scene, he was followed
a short distance by one of the victims who later testified
that she observed the robber changing clothes as he was
running away.
The police were called, arrived on the scene immedi-
ately, and began searching for the robber in a nearby
apartment development. One of the officers testified that
he observed the defendant, Avery Ferrell, emerging from
an apartment building wearing a blue-gray suit, hard shoes,
and carrying a gray coat and a shopping bag. As the
officer approached him, Ferrell began to walk away at an
increasingly brisk pace. According to the officer’s testi-
mony, Ferrell dropped the shopping bag and ran behind
a building. The officer then observed Ferrell entering a
different apartment building and relayed that information
to another officer at the scene who arrested Ferrell.! When
Ferrell was apprehended, he was carrying a three-quarter
length gray coat which was identified by one of the victims
as looking like the coat the robber wore. None of the
' The police officer's testimony concerning the defendant's movements
and possession of the shopping bag was creety contradicted by the
defendant's testimony.
3a
victims, however, was able to identify Ferrell as the
masked robber. The shopping bag was recovered and found
to contain the articles stolen from the victims, along with
a handgun containing five live rounds with one spent car-
tridge, and a ski mask.
The State’s Attorney filed four criminal informations
against Ferrell, each relating to one of the victims, and
each charging the following offenses:
Count 1 - Robbery with a deadly weapon;
Count 2 - Attempted robbery with a deadly
weapon;
Count 3 - Robbery;
Count 4 - Assault with intent to rob;
Count 5 - Assault;
Count 6 - Theft of less than $300;
Count 7 - Use of a handgun in the commission
of a felony or crime of violence;
Count 8 - Unlawful carrying of a handgun.
A fifth information charged Ferrell with assault with in-
tent to murder one of the victims.
Ferrell has since stood trial four times in the Circuit
Court for Baltimore City. At the first trial on the above-
described charges, the jury returned a verdict of not guilty
of assault with intent to murder and guilty of the other
charges except counts 2 and 4.2 Ferrell moved for a new
trial, and the motion was granted.‘ The second trial re-
sulted in a hung jury on all charges submitted to the jury.
At the third trial, the State desired that only the charges
of armed robbery and use of a handgun in the commission
of a felony or crime of violence would be submitted to the
jury. The jury found Ferrell not guilty of using a handgun
?It is not clear from the record what happened to counts 2 and 4.
* The new trial was apparently granted on the ground that the jury’s
verdicts were not unanimous.
4a
in the commission of a felony or crime of violence, but
the jury was unable to reach a verdict as to armed robbery.
Once again a mistrial was declared.
The State decided to bring Ferrell to trial a fourth time
for armed robbery. Prior to the fourth trial, Ferrell moved
to have the armed robbery counts dismissed on the grounds
of collateral estoppel and double jeopardy. Ferrell argued
that, as the only issue before the jury at the third trial
on both the handgun counts and the armed robbery counts
was the identity of the robber, his acquittal on the handgun
charges necessarily determined the identity issue in his
favor, thus precluding the State from relitigating that is-
sue. The trial judge denied the motion. While finding that
only one. person was accused of robbery with a handgun,
and that the disputed issue at the third trial was whether
the defendant was that person, the trial judge took the
position that the jury’s acquittal on the handgun charges
could have been based on some theory other than a de-
termination that the defendant was not the armed robber.
At one point the trial judge stated: “How do you know
they [the jurors] didn’t feel that the gun wasn’t used in
the robbery, even though there was a gun? I mean, I can't
speculate on what the jury determined.”
The trial proceeded, and Ferrell was convicted. He was
given two fifteen year sentences on two of the armed
robbery counts, to be served concurrently, and two ten
year sentences on the two remaining counts, to be served
consecutively to the fifteen year term and consecutively
to each other, for a total of thirty-five years imprisonment.
On appeal to the Court of Special Appeals, Ferrell chal-
lenged the convictions on the grounds, inter alia, of col-
lateral estoppel and judicial misconduct. The Court of
Special Appeals, by a divided court, affirmed. Ferrell v.
State, 73 Md. App. 627, 536 A.2d 99 (1988). The inter-
mediate appellate court held that the jury could have
grounded its acquittal of the handgun charges on an issue
5a
other than the disputed issue under the armed robbery
charges. Unlike the trial court, however, which had based
its decision on the possibility that the jury’s acquittal on
the handgun charges rested on a theory not supported by
the evidence, the Court of Special Appeals held that the
jury at the third trial could have found from the evidence
that the defendant was an accomplice in the robbery rather
than the actual robber who used the handgun. The Court
of Special Appeals also held that the conduct of the circuit
court did not amount to reversible error.
We granted Ferrell’s petition for a writ of certiorari to
determine whether the Court of Special Appeals erred in
concluding that collateral estoppel did not preclude a re-
trial on the armed robbery counts and whether the circuit
court’s conduct constituted reversible error. Since we shall
resolve the collateral estoppel issue in Ferrell’s favor, we
shall not reach the second issue.
I.
Both the Fifth Amendment to the United States Con-
stitution and Maryland common law provide that no person
shall be put in jeopardy twice for the same offense. More-
over, under both the Fifth Amendment and Maryland com-
mon law, it is established that the doctrine of collateral
estoppel is embodied in the double jeopardy prohibition.
Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d
469 (1970); Robinson v. State, 307 Md. 738, 741-743, 517
A.2d 94 (1986); Bowling v. State, 298 Md. 396, 401-402,
470 A.2d 797 (1984); Carbaugh v. State, 294 Md. 323, 329,
449 A.2d 1153 (1982); Powers v. State, 285 Md. 269, 401
A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62
L.Ed.2d 197 (1979); Cousins v. State, 277 Md. 383, 398,
354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S.Ct. 652,
50 L.Ed.2d 631 (1976). See also In re Neil C., 308 Md.
591, 594, 521 A.2d 329 (1987).
In Ashe v. Swenson, supra, the defendant was charged
with the robbery of one of six poker players who had been
6a
robbed by three or four armed men. The only contested
issue in the case was whether the defendant was one of
the robbers. At the end of the trial, the jury found the
defendant not guilty. Six weeks later, the defendant was
brought to trial and convicted for the robbery of one of
the other poker players. The United States Supreme Court
reversed the conviction, stating: ‘‘ ‘Collateral estoppei’ is
an awkward phrase, but it stands for an extremely im-
portant principle in our adversary system of justice. It
means simply that when an issue of ultimate fact has once
been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any
future lawsuit.”” 397 U.S. at 443, 90 S.Ct. at 1194.
The Supreme Court has applied the collateral estoppel
holding of Ashe v. Swenson in several sul-3sequent cases.
See, e.g., Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096,
32 L.Ed.2d 798 (1972); Harris v. Washington, 404 U.S.
55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Simpson v. Flor-
ida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971).
See also United States v. Powell, 469 U.S. 57, 64, 105
S.Ct. 471, 476, 83 L.Ed.2d 461 (1984).
In Powers v. State, supra, 285 Md. 269, 401 A.2d 1031,
this Court applied the principles of Ashe v. Swenson and
its progeny to circumstances similar to those in the case
at bar. In Powers, the defendant was charged with the
armed robbery of two victims, and the attempted armed
robbery of a third victim, all at the same time and place.
Unlike the facts of Ashe v. Swenson, all of the charges
against Powers were tried at a single trial. A jury ac-
quitted Powers of charges relating to two of the victims
but could not agree on the charge relating to the third
victim. When the State decided to retry Powers on the
armed robbery charge relating to the third victim, Powers
filed a motion to dismiss on the ground of collateral es-
toppel. The trial court denied the motion, but this Court
reversed.
7a
The Court in Powers held ‘‘that the doctrine of collateral
estoppel applies after a jury, at a single trial, acquits on
one count of a multicount indictment and is unable to
agree upon a verdict on a related count of the same in-
dictment involving a common issue of ultimate fact, which
if found in favor of an accused would establish his inno-
cence on both counts.”’ 285 Md. at 288, 401 A.2d at 1042.
We reasoned that, even though under Maryland common
law a mistrial is equivalent to no trial at all, is not a final
determination, and resolves no issue, Cook v. State, 281
Md. 665, 671, 381 A.2d 671, 674, cert. denied, 439 U.S.
839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978), we could not
ignore the fact that in the same trial a final determination
of the common issue of ultimate fact had indeed been made
on a related count and had been decided in the defendant’s
favor. The Court stated that “the primary purpose of the
doctrine of collateral estoppel is to protect an accused from
the unfairness of being required to relitigate an issue which
has once been determined in his favor by a verdict of
acquittal.” 285 Md. at 283-284, 401 A.2d at 1039.
The only disputed issue before the jury in Powers was
whether Powers had been one of the robbers. By its ver-
dicts of acquittal, the jury found that Powers had not been
one of the robbers. Therefore, the State was precluded
from bringing a second prosecution on the count on which
the jury could not agree.
There is a difference between Powers and the instant
case. Powers involved separate victims and essentially iden-
tical offenses, with the retrial concerning the same offense
but a different victim than the ones to whom the earlier
acquittals related. The case at bar involves separate vic-
tims and offenses which are separate but deemed the same
under the required evidence test, and the retrial relates
to the same victims but a different offense than that which
was the subject of the acquittal at the earlier trial.‘ Never-
* See State v. Ferrell, 313 Md. 291, 297-301, 545 A.2d 653, 656-658
8a
theless, the critical questions in applying collateral estoppel
are not whether the victim is the same or whether each
offense is the same. The important questions are whether
the offense for which the defendant was earlier acquitted,
and the offense for which he is being retried, each involved
a common issue of ultimate fact, and whether that issue
was resolved in the defendant’s favor at the earlier trial.
As Judge Adkins recently stated for the Court in Robinson
v. State, supra, 307 Md. at 742, 517 A.2d at 96, “‘the
language ... from [Ashe v. Swenson] makes it clear that
the critical consideration is whether ‘an issue of ultimate
fact’ has been determined in favor of a defendant. The
process by which that determination is made... is not
critical.” See, e.g., Turner v. Arkansas, supra, 407 U.S.
at 367-370, 92 S.Ct. 2098-2099 (collateral estoppel pre-
cluded trial on robbery charge where defendant, at earlier
trial, had been acquitted of murdering same victim, and
where issue of ultimate fact was the same). See also Bowl-
ing v. State, supra, 298 Md. at 402-405, 470 A.2d at 800-
802. Moreover, courts applying collateral estoppel where
a jury acquits on one count of a multicount indictment but
is deadlocked on another count have made no distinction
between situations where the two offenses are the same
and those where the two offenses are different. The doc-
trine is applied regardless. If the court decides that an
issue has been determined in a defendant’s favor, then
collateral estoppel will preclude the prosecution from re-
litigating that issue. See, e.g., United States v. Gornto, 792
F.2d 1028, 1031 (11th Cir. 1986); United States v. Larkin,
605 F.2d 1360, 1370-1371 (5th Cir. 1979), modified on other
(1988), holding that armed robbery is a lesser included offense of the
use of a handgun in the commission of a felony or crime of violence
when that felony or crime of violence was the same armed robbery.
It is noteworthy that if the jury at the defendant’s third trial had
acquitted the defendant of the armed robbery charges, and had been
hung on the handgun charges, a retrial on the handgun charges would
have been precluded by double jeopardy principles. See Wright v. State,
307 Md. 552, 562, 515 A.2d 1157 (1986).
2A A OU ok ee Eee
9a
grounds, 611 F.2d 585 (5th Cir. 1980), cert. denied, 446
U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980); United
States v. Mespoulede, 597 F.2d 329, 336-337 (2d Cir. 1979);
United States v. Hans, 548 F.Supp. 1119, 1124 (S.D. Ohio
1982); United States v. Flowers, 255 F.Supp. 485 (E.D.N.C.
1966).
As previously mentioned, the trial judge, although find-
| ing that the only issue at the third trial in this case was
the identity of the lone robber who used an operative
handgun, nevertheless speculated that the jury’s acquittal
on the handgun charge could have been based on some
theory conjured up by the jury and having nothing to do
with the identity of the armed robber. The Court of Special
Appeals, on the other hand, purported to find some in-
dication in the record that the jury at the third trial might
have grounded its verdict on a finding that the defendant
was an accomplice in the robbery as opposed to being the
actual robber. Neither the trial court’s nor the Court of
Special Appeals’ position is tenable in light of the case
law and the record here.
In Ashe v. Swenson, supra, the Supreme Court stated
that the ‘“‘decisions have made clear that the rule of col-
lateral estoppel in criminal cases is not to be applied with
the nypertechnical and archaic approach of a 19th century
pleading book, but with realism and rationality.’’ 397 U.S.
at 444, 90 S.Ct. at 1194. “[T]his approach requires a court
to ‘examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have
grounded its verdict upon an issue other than that which
the defendant seeks to foreclose from consideration.’ ’’ Jbid.
In Simpson v. Florida, supra, 403 U.S. at 385, 91 S.Ct.
at 1802, the Court indicated that collateral estoppel pre-
cluded a retrial following an acquittal where the “‘sole
disputed issue at each of [petitioner’s] trials’ was the same,
namely petitioner’s identity as a perpetrator of the armed
robbery. See Turner v. Arkansas, supra, 407 U.S. at 368-
10a
369, 92 S.Ct. at 2098-2099 (Court reviewed trial record,
including jury instructions, in determining that issue at
the two trials was the same); Sealfon v. United States, 332
U.S. 575, 580, 68 S.Ct. 237, 240, 92 L.Ed. 180 (1948)
(Court reviewed evidence and prosecution’s theory at first
trial, in determining that acquittal on a conspiracy charge
precluded subsequent prosecution for substantive offense);
Bowling v. State, supra, 298 Md. at 402-403, 470 A.2d at
800-801.
Consequently, in determining whether the State at a
subsequent trial is attempting to relitigate an issue which
was resolved in the defendant’s favor at an earlier trial,
a court must realistically look at the record of the earlier
trial, including the pleadings, the evidence, the prosecu-
tion’s theory, the disputed issues, and the jury instructions.
A court should not, as did the trial court in the instant
case, ignore the evidence and disputed issues at the earlier
trial and speculate that the jury’s acquittal might have
been based on a theory having nothing to do with the
evidence and issues presented to the jury.
Moreover, in reviewing the earlier trial to determine the
jury’s basis for the acquittal, a court ‘“‘should not strain
to dream up hypertechnical and unrealistic grounds on
which the previous verdict might conceivably have rested.”’
United States v. Jacobson, 547 F.2d 21, 23 (2d Cir. 1976),
cert. denied, 430 U.S. 946, 97 S.Ct. 1581, 51 L.Ed.2d 793
(1977). See also United States v. Mespoulede, supra, 597
F.2d at 333. ‘“‘ ‘(UJnrealistic and artificial speculation about
some far-fetched theory upon which the jury might have
based its verdict of acquittal’ is foreclosed.’’ State v. Ed-
wards, 310 N.C. 142, 145, 310 S.E.2d 610, 613 (1984),
quoting United States v. Sousley, 453 F.Supp. 754, 762
(W.D. Mo. 1978).
The record in this case is devoid of any indication that
the jury at the third trial could have rationally based its
acquittal on the handgun charges upon the accomplice the-
lla
ory suggested by the Court of Special Appeals or upon
any issue other than the identity of the lone robber. No-
where in the evidence is there a suggestion of an ac-
complice. Indeed, the State throughout all of the trials
established that there was only one robber.® All testimony
and other evidence put on by the State were designed to
convince the jury that the defendant Ferrell was the man
who robbed the four victims with a handgun and fired the
gun at one of the victims. The only theory posited through-
out was that there had been one gun and one robber, and
that Ferrell was the robber. In fact, the State’s attorney
said in his closing argument at the fourth trial that there
is no dispute as to whether an armed robbery took place.
“The dispute... becomes whether or not this defendant
Avery Vincent Ferrell was the young man who on that
morning wore this mask pulled down over his face and
wore this gray coat’”’ to rob the four victims. The record
discloses that during the third trial the State maintained
the same theory of the case as in the fourth trial. Ferrell’s
only disagreement with the State’s theory was that he was
not the lone armed robber.
During the hearing on Ferrell’s motion to dismiss prior
to the fourth trial, the trial judge, who also presided over
the third trial, stated the issue at the third trial as follows:
‘(W]e all agree one person is accused of doing it, and one
person is accused of doing it with the use of a handgun,
* The record before us does not contain a complete transcript of the
third trial. Portions were ordered by the Court of Special Appeals.
Since the third trial resulted in no verdict adverse to the defendant,
there was no reason for him to have ordered a transcript under Mary-
land Rule 8-411. Moreover, until the case reached the Court of Special
Appeals, it was undisputed that at the third trial the only contested
issue under both the handgun and the armed robbery counts was the
identity of the sole robber using a handgun. Because there was no
dispute in the trial court as to this matter, there was little reason for
the defendant to have ordered a transcript. Despite the absence of a
complete transcript, the record is sufficient for us to decide this case.
12a
and the defendant says I am not that person....’’ Later
the trial judge reiterated that ‘everybody agrees’’ that
there was a crime of violence committed by one person
with a handgun, and the issue is whether the defendant
is that person. The prosecution at no point disagreed with
the trial court’s statements concerning the case and the
issue. Furthermore, in Ferrell’s written motion to dismiss,
he pointed out that “‘[a]t each trial, the State’s theory was
that there was only one robber involved, the defendant,
and there was no dispute that a gun was used by that
robber.”” The State expressed no disagreement with this.
Thus, it has been undisputed in this case that an armed
robbery was committed by one man with an operative
handgun. Ferrell’s only defense was that he was not that
man.
Ferrell was tied to this crime because of the long gray
coat he was carrying when he was arrested and testimony
that he was seen with the shopping bag containing the
stolen goods.* There was never a positive identification
made of the robber by the victims. Furthermore, when he
was arrested Ferrell was dressed nothing like the robber.
The State attempted to explain this discrepancy through
the testimony of one of the victims who saw the robber
changing clothes as he fled the scene. In closing argument,
the State went to great lengths to tie ail of this circum-
stantial evidence to Ferrell in an attempt to persuade the
jury that Ferrell was indeed the man who terrorized the
four victims with a gun. Finally, the jury was never given
an accomplice instruction at either the third trial or the
fourth trial.’
* As previously mentioned, at the fourth trial, one of the arresting
officers testified that he saw Ferrell drop the shopping bag at the
corner of an apartment building. It came out on cross examination,
however, that at the third trial this same witness testified that he did
not actually see the dropping of the bag.
’ During Ferrell’s pre-trial motion to dismiss at the fourth trial the
———————————————————
13a
The State’s argument, accepted by the Court of Special
Appeals, that the acquittal on the handgun charges might
reasonably have been based on a jury finding that Ferrell
was an accomplice, instead of the person wielding the
handgun, is totally contrary to the record in this case. See
Turner v. Arkansas, supra, 407 U.S. at 369-370, 92 S.Ct.
at 2098-2099 (applying collateral estoppel and rejecting,
based upon review of record and jury instructions, State’s
argument that acquittal on murder charge at first trial
might be based on theory that petitioner was accomplice
of murderer and thus might be subsequently prosecuted
for robbery of the same victim). The sole disputed issue
at the third trial, and the issue submitted to the jury, was
whether the defendant Ferrell was the one person involved
in robbing the four victims with a handgun. Under the
principles set forth in Ashe v. Swenson, supra, and Powers
v. State, supra, the acquittal on the handgun charge re-
solved this identity issue in Ferrell’s favor and precluded
the State from relitigating the issue.
Il.
Alternatively, the State argues that we should overrule
Powers v. State. The State contends that Powers was
wrongly decided and that collateral estoppel should not
prevent a retrial on a count of an indictment where the
jury had been unable to agree, but where the jury had
acquitted on another count of the indictment having a
common issue of ultimate fact which, if found in the
defendant’s favor, would establish his innocence on both
of the counts.
In the present case, in Powers, and in similar cases
arising elsewhere, various arguments have been made
against the application of collateral estoppel under circum-
trial judge discussed how she charged the jury at the third trial. No
accomplice instruction was included in that charge.
l4a
stances like those in this case. The great majority of cases,
however, have rejected these arguments.
The principal arguments that have been made against
applying collateral estoppel in this situation have involved
reliance upon the rule that inconsistent jury verdicts or-
dinarily are tolerated. See, e.g., Wright v. State, 307 Md.
552, 576, 515 A.2d 1157 (1986); Shell v. State, 307 Md.
46, 53-55, 512 A.2d 358 (1986); Mack v. State, 300 Md.
583, 593-595, 479 A.2d 1344 (1984); Ford v. State, 274
Md. 546, 551-553, 337 A.2d 81 (1975), and cases there
reviewed. This reliance is misplaced for two reasons.
First, as this Court pointed out in Powers, there is no
inconsistency between an acquittal on one count and no
verdict on another count. The Court there stated (285 Md.
at 285, 401 A.2d at 1040):
“In our view, there can be no inconsistency in
a jury’s findings of fact when it acquits on one
count and is unable to agree on another count
having a common issue of ultimate fact, which if
found in favor of an accused would establish his
innocence on both counts. In Maryland, a mistrial
is equivalent to no trial at all. Cook v. State, 281
Md. 665, 671, 381 A.2d 671, 674 (1978). It is not
a final determination and decides no question of
fact. Accordingly, a jury’s failure to agree, which
results in a mistrial, does not establish any facts,
and thus cannot establish facts inconsistent with
those established by its verdicts of acquittal.
United States v. Smith, 337 A.2d [499] at 503-04
[1975] (Kern, J., concurring).
‘Ashe requires the doctrine of collateral estop-
pel to be applied whenever an issue of ultimate
fact has once been determined by a valid and
final judgment of acquittal. 397 U.S. at 443, 90
S.Ct. at 1194. Here, the only valid and final judg-
ments before us are the jury’s verdicts of ac-
es, be ee
-
15a
quittal. There is no question that those verdicts
do constitute a valid determination of issues of
ultimate fact. Because the jury’s failure to agree
did not decide any facts, it did not make the
validity of that determination questionable. Ac-
cordingly, the doctrine of collateral estoppel ap-
plies.”’
Second, even if the jury’s failure to agree on one count
is viewed as inconsistent with an acquittal on another count
of a multicount indictment where the disputed issue under
both counts was the same, the rule that inconsistent jury
verdicts are allowed has no application to the situation in
Powers and in the present case. The rule concerning in-
consistent jury verdicts simply means ‘that a conviction
on one count may... stand... [despite] an inconsistent
acquittal on another count.”’ Ford v. State, supra, 274 Md.
at 552, 337 A.2d at 85, quoting Leet v. State, 203 Md.
285, 293, 100 A.2d 789 (1953). It relates to inconsistency
at the same trial, and has no application to successive
trials.* See United States v. Powell, supra, 469 U.S. at 64,
68, 105 S.Ct. at 476, 478 (inconsistent verdict rule applies
‘‘to verdicts rendered by a single jury’’; it applies where
‘the same jury reached inconsistent results’). The rule
does not authorize a second trial on an issue which has
been resolved against the prosecution. Referring to lan-
guage in Lunn v. United States, 284 U.S. 390, 393, 52
S.Ct. 189, 190, 76 L.Ed. 356 (1932), which suggested that
there may be inconsistent verdicts at successive trials,
where the first verdict was an acquittal, the Supreme Court
in the Powell case, 469 U.S. at 64, 105 S.Ct. at 476, stated:
“The... statement [from Dunn], if not incorrect
at the time, see United States v. Oppenheimer,
*Some of the decisions relied on by the State in the present case
simply involve the inconsistent verdict rule in the context of a single
trial, and do not involve an attempted reprosecution. See, e.g., State v.
Dominique, 619 S.W.2d 782, 786 (Mo. App. 1981).
16a
242 U.S. 85, 87, 37 S.Ct. 68, 69, 61 L.Ed. 161
(1916), can no longer be accepted in light of cases
such as Sealfon v. United States, 332 U.S. 575,
68 S.Ct. 237, 92 L.Ed. 180 (1948), and Ashe v.
Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d
469 (1970), which hold that the doctrine of col-
lateral estoppel would apply under those circum-
stances.”
As the Supreme Court further pointed out in Powell,
inconsistent verdicts in the context of a single jury tral
are tolerated for certain policy reasons even though they
represent ‘‘jury irrationality,” whereas “principles of col-
lateral estoppel... are predicated on the assumption that
the jury acted rationally and found certain facts in reach-
ing its verdict... ,’’ 469 U.S. at 67-68, 105 S.Ct. at 478.
When it comes to the prosecution’s attempted relitigation
at a second trial, of an issue resolved in the defendant's
favor by an acquittal at an earlier trial, collateral estoppel
and the assumption of jury rationality is applicable.
The difference between inconsistent verdicts in a single
trial and the situation in the present case was discussed
in detail in United States v. Flowers, supra, 255 F.Supp.
485, one of the opinions relied upon by the State in the
instant case (State’s Brief, p. 21). In Flowers, the jury at
the first trial acquitted the defendant on several counts
of an indictment and was unable to agree on several other
counts, and the prosecution attempted to reprosecute the
defendant on those counts where the jury was unable to
agree. The court held that collateral estoppel barred the
reprosecution on those counts having the same issue of
ultimate fact which was resolved by the earlier acquittals.
Addressing the prosecution’s reliance on the rule that in-
consistent jury verdicts are tolerated, the court in Flowers,
255 F.Supp. at 487, initially observed that, with regard
to the permissibility of the reprosecution,
a ee
l7a
{ijt must be assumed that the [earlier] jury was
aware of all the facts in evidence and that it
logically and properly applied the instructions of
the court in reaching its verdict of acquittal. The
possibility that the jury acquitted by reason of
charity, compromise or simple frustration flowing
from hours of tedious debate is barred from the
court’s consideration.”
court then stated (id. at 487-488):
‘Had the jury in the instant case convicted the
defendant on one of the counts on which they
failed to reach a verdict, the conviction would
not be subject to attack on the ground of incon-
sistency with any of the other counts upon which
the defendant was acquitted. However, the jury
did not convict Flowers on any of the 26 counts
of the indictment; a conviction on one of the 13
remaining counts would be rendered by a differ-
ent jury at a point later in time. As in Dunn,
any inconsistency would be between different
counts of the same indictment but, as in Sealfon,
a conviction would come at a date later than the
acquittal on the other counts and from a new
jury.
“In the context of a situation such as that pre-
sented here, i.e., a verdict of acquittal on some
counts coupled with the jury’s inability to reach
a verdict on other counts, the application of the
Sealfon rationale requires the Court to assume
that the jurors have been logical in reaching their
decision on the acquitted counts, yet the ultimate
result will often be a conclusion that the jurors,
or some of them, were illogical and inconsistent
in failing to acquit on the remaining counts.”
18a
Turning to the cases relied on by the prosecution, the
Flowers court explained (id. at 489):
“The government relies upon language in
United States v. Petti, 168 F.2d 221, 224 (2d
Cir. 1948), to the effect that the doctrine of res
judicata has no application to different counts in
the same indictment or to consolidated indict-
ments. Similar wording has been used in a num-
ber of cases.... [citations omitted]. These
statements, however, have uniformly been ut-
tered against the factual background of allegedly
inconsistent jury verdicts rendered at the same
time by the same jury and must be construed
against that background. In contrast, the issue
to be determined here is whether a verdict of
guilty upon a retrial by a new jury would nec-
essarily be inconsistent with the finding of not
guilty on any of the 13 counts of the indictment
disposed of at the first trial.
“My conclusion [is] that the collateral estoppel
principle is applicable in the instant set-
ee
The court also pointed out (id. at 488) that the authorities
“uniformly support the application of the collat-
eral estoppel prinziple to the situation where, as
here, the jurors have acquitted on some counts
and have been unable to reach a verdict on oth-
ers. See United States v. Kenny, 236 F.2d 128
(3d Cir.), cert. denied, 352 U.S. 894, 77 S.Ct. 133,
1 L.Ed.2d 87 (1956) (separate indictments tried
together); Cosgrove v. United States, supra [224
F.2d 146 (9th Cir. 1955)], (multiple count indict-
ment); United States v. Perrone, 161 F.Supp. 252
(S.D.N.Y. 1958) (multiple count indictment).”’
The applicability of the inconsistent verdict rule, under
circumstances like those in the present case, was also dis-
19a
cussed in detail by the United States Court of Appeals
for the Second Circuit in United States v. Mespoulede, su-
pra, 597 F.2d at 336-337. As in the case at bar, Mespoulede
involved an acquittal on one count of an indictment and
a hung jury on a second count, where both counts involved
a common issue of fact. The government reprosecuted the
defendant on the second count. In holding that the prin-
ciples of collateral estoppel were applicable to the second
trial, the United States Court of Appeals stated (597 F.2d
at 336):
“Finally, it is argued that the principles of col-
lateral estoppel are inapplicable to the retrial of
charges contained in a multicount indictment... .
“At first blush, it may seem odd that such a
broad rule is pressed upon us, especially since
the burden of litigating an issue that the
defendant thought had been laid to rest for all
time is no lighter than in the first trial. And
indeed, with virtual unanimity, the cases have
applied collateral estoppel to bar the Government
from relitigating a question of fact that was de-
termined in defendant’s favor by a partial ver-
dict. See Green v. United States, 138 U.S. App.
D.C. 184, 426 F.2d 661 (1970) (per curiam); Trav-
ers v. United States, 118 U.S. App. D.C. 276,
281, 335 F.2d 698, 703 (1964); Cosgrove v. United
States, 224 F.2d 146 (9th Cir. 1955); United States
v. Flowers, 255 F.Supp. 485 (E.D. N.C. 1966);
United States v. Pappas, 445 F.2d 1194, 1199 (3d
Cir.) (dictum), cert. denied, 404 U.S. 984, 92 S.Ct.
449, 30 L.Ed.2d 368 (1971); United States v. Per-
rone, 161 F.Supp. 252, 258-59 (S.D.N.Y. 1958)
(dictum).”’
Turning to the government’s reliance upon the inconsistent
verdict rule, the court said (id. at 336-337):
20a
“But it hardly follows from the fact that a single
jury in one trial is allowed to render inconsistent
verdicts that a second jury in a second trial should
be permitted to rely on the evidence rejected by
the first.
“We tolerate inconsistencies in unified jury
verdicts in criminal cases, not because of any
singular virtue we attribute to inconsistency, but
rather out of deference to the nature of the jury
and the role it plays in our jurisprudence.”’
And later the court continued (id. at 337):
“Internal inconsistency... is not an end in
itself, and it would be irrational to expand gra-
tuitously the judicial tolerance of inconsistent ver-
dicts to permit different juries in successive trials
to reach contradictory results. Allowing a second
jury to reconsider the very issue upon which the
defendant has prevailed serves no valuable func-
tion. To the contrary, it implicates concerns about
the injustice of exposing a defendant to repeated
risks of conviction for the same conduct, and to
the ordeal of multiple trials, that lie at the heart
of the double jeopardy clause. See, e.g., Green v.
United States, 355 U.S. 184, 187-88, 78 S.Ct. 221,
223, 2 L.Ed.2d 199 (1957).”
Another argument made against applying collateral es-
toppel in the circumstances of the case at bar, is that the
earlier jury, because it was hung on certain counts in-
volving the common issue of ultimate fact, did not resolve
that issue in the defendant’s favor. In other words, by
focusing exclusively on the count or counts where the jury
was unable to agree, there may be some force in the
contention that the jury did not decide the critical issue
in the defendant’s favor. Nevertheless, as discussed by the
court in United States v. Flowers, supra, 255 F.Supp. at
2la
487-488, principles of collateral estoppel require that the
focus be upon the jury’s earlier acquittal, with that ac-
quittal being viewed as a rational resolution of the un-
derlying facts. Moreover, it is logical to focus upon the
counts where the jury reached verdicts rather than upon
counts representing no decision and establishing nothing.
See Powers v. State, supra, 285 Md. at 285, 401 A.2d at
1040.
The State in the present case also invokes the settled
rule that the double jeopardy prohibition ordinarily does
not preclude a retrial following the declaration of a mistrial
because the jury was unable to agree. See, e.g., Richardson
v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d
242 (1984); Arizona v. Washington, 434 U.S. 497, 98 S.Ct.
824, 54 L.Ed.2d 717 (1978); United States v. Perez, 9
Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824); Wooten-Bey v.
State, 308 Md. 534, 542-543, 520 A.2d 1090, cert. denied,
481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 853 (1987); In
re Mark R., 294 Md. 244, 250-251, 449 A.2d 393 (1982),
and cases there cited. Those cases, and others like them,
did not involve a collateral estoppel bar because of an
acquittal at the earlier trial on a count having a common
issue of ultimate fact with the count on which the jury
was hung and which is the subject of the second prose-
cution. In the instant case, if the jury had not acquitted
the defendant of the handgun charges, or if the handgun
charges had not involved the same disputed issue as the
armed robbery charges, the abovecited cases would be
fully applicable and a retrial or. the the armed robbery
charges would not be precluded by double jeopardy prin-
ciples. See Wooten-Bey v. State, supra, 308 Md. at 543-
545, 520 A.2d at 1094-1095, for a discussion of this very
distinction. Nothing in the above-cited cases, however, sup-
ports the view that the State is entitled to relitigate the
facts or issues resolved against it by a previous acquittal.
Instead, as the Supreme Court has stated, the policy of
the double jeopardy prohibition ‘‘protects the accused from
22a
attempts to relitigate the facts underlying a prior ac-
quittal,’’ Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221,
2225, 53 L.Ed.2d 187 (1977).
As previously indicated, the overwhelming majority of
cases take the position that the principles of collateral
estoppel are applicable to the situation presented in Powers
v. State, supra, 285 Md. 269, 401 A.2d 1031, and in the
case at bar. See, e.g., United States v. Gornto, supra, 792
F.2d 1028; United States v. Bowman, 609 F.2d 12, 17 (D.C.
Cir. 1979); United States v. Larkin, supra, 605 F.2d 1360;
United States v. Mespoulede, supra, 597 F.2d 329; Green
v. United States, 138 U.S. App. D.C. 184, 426 F.2d 661
(1970); United States v. Kenny, 236 F.2d 128, 130 (3d Cir.),
cert. denied, 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87
(1956); Cosgrove v. United States, 224 F.2d 146 (9th Cir.
1954); United States v. Hans, supra, 548 F.Supp. at 1124-
1126; United States v. Mulherin, 529 F.Supp. 916, 933
(S.D. Ga. 1981), affd, 710 F.2d 731, 740-743 {11th Cir.
1983), cert. denied, 464 U.S. 964, 465 U.S. 1034, 104 S.Ct.
402, 1305, 78 L.Ed.2d 343, 79 L.Ed.2d 703 (1983, 1984):
United States v. Flowers, supra, 255 F.Supp. 485; Oliver
v. Superior Court, 92 Cal.App. 94, 267 P. 764 (1928); Com.
v. Todd, 348 Pa.Super. 453, 502 A.2d 631 (1985); Com. v.
Jones, 274 Pa.Super 162, 418 A.2d 346, 350-351, cert.
denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980).*
In light of this authority, and the reasons underlying the
holding in Powers v. State, supra, we adhere to that hold-
ing.
* There is a minority position, represented mostly by cases in New
Jersey. See State v. Esposito, 148 N.J.Super. 102, 371 A.2d 1273, certi
denied, 74 N.J. 260, 377 A.2d 669 (1977); State v. Trrano, 147 NJ
Super. 474, 371 A.2d 734 (1974); United States v. McGowan, 385 F.Supp
956 (D. N.J. 1974). But see United States ex rel. Triano v. Supenor
Court of N.J., 393 F.Supp. 1061 (D. N.J.), aff'd, 523 F.2d 1052 (3d
Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 787, 46 L.Ed.2d 645
(1976).
23a
The State in this case had more than “ ‘one full and
fair opportunity to convict’’’® the defendant Ferrell of
robbery with a handgun. After three trials, a jury acquit-
ted Ferrell of committing robbery with a handgun. Con-
sequently, the State should not have been permitted to
relitigate this issue at a fourth trial.
JUDGMENT OF THE COURT OF SPECIAL APPEALS RE-
VERSED, AND CASE REMANDED TO THAT COURT WITH
DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIR-
CUIT COURT FOR BALTIMORE CITY AND TO REMAND
THE CASE TO THE CIRCUIT COURT FOR BALTIMORE
CITY WITH DIRECTIONS TO DISMISS THE INFORMA-
TIONS. COSTS IN THIS COURT AND IN THE COURT OF
SPECIAL APPEALS TO BE PAID BY THE MAYOR AND
CITY COUNCIL OF BALTIMORE.
McAULIFFE, Judge, dissenting.
I disagree with Part I of the Court’s opinion, and with
the result. The doctrine of collateral estoppel prohibits the
State from relitigating a fact that has been finally decided
against the State in a previous proceeding between the
parties. Ferrell says, and the majority agrees, that this
record shows that the jury in the third trial decided that
Ferrell was not the person who robbed these four victims.
I cannot agree.
In the first place, the record that Ferrell presents for
this Court’s consideration is insufficient to show much of
anything about what occurred at the third trial. In the
face of clear language by the Supreme Court in Ashe v.
Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 25 L.Ed.2d
469 (1970), repeated by this Court in Powers v. State, 285
Md. 269, 278, 401 A.2d 1031, cert. denied, 444 U.S. 937,
100 S.Ct. 288, 62 L.Ed.2d 197 (1979), that a court deciding
a claim of collateral estoppel must ‘‘examine the record
° Wright v. State, supra, 307 Md. at 577 n. 5, 515 A.2d at 1170 n.
5, quoting Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 2542,
81 L.Ed.2d 425 (1984).
24a
of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter,”’ Ferrell did
not provide a transcript of the proceedings of the third
trial. The majority refers to the “absence of a complete
transcript,” when in fact we have virtually no transcript.
At the direction of the Court of Special Appeals, the State
furnished a few pages of transcript to assist that court in
understanding the grounds for dismissal of certain other
counts by the trial judge. Apart from that, as Judge Wilner
pointed out for the Court of Special Appeals, no transcript
was provided:
[N]jo part of the proceedings of the third trial,
save the few pages of transcript dealing with the
disposition of Counts 2-7, furnished by the State
in response to our order, has been included in
the record. We don’t know, other than in a gen-
eral way, what evidence was presented to that
third jury; nor do we know what instructions
were given or what argument was made to the
jury.
Ferrell v. State, 73 Md. App. 627, 634, 536 A.2d 99 (1988).
More important, however, is this point—whatever the
jurors in the third trial might have decided, we can be
sure they did not decide that Ferrell was not the robber.
Had they decided that, they would have found Ferrell not
guilty of the robbery as well. It is absolutely illogical to
conclude that the same jurors who unanimously found that
Ferrell was not the man who robbed these victims with
a handgun would be unable to reach a verdict on the
robbery count.
The majority apparently holds that because the State is
unable to demonstrate exactly why the jury reached the
conclusion it did, the defendant must prevail. That, I sug-
gest, is not a proper application of the principles of col-
lateral estoppel.
25a
The Supreme Court has said that the relevant inquiry
is ‘‘whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks
to foreclose from consideration.’’ Ashe v. Swenson, supra,
397 U.S. at 444, 90 S.Ct. at 1194. The Court cautioned
that the inquiry must be approached “with realism and
rationality,’’ and ‘“‘must be set in a practical frame and
viewed with an eye to all the circumstances of the pro-
ceedings.”’ The only practical and rational conclusion that
I can reach upon consideration of all the known circum-
stances of the third trial is that the jury could not have
concluded that which Ferrell argues it must have con-
cluded.
I cannot be certain why the jury found as it did on the
charge of use of a handgun in the commission of a felony
or a crime of violence. It may have erroneously concluded
that the defendant did not “‘use’’ the handgun because no
one was shot. It may have felt that the State had not
proven the gun involved was a “handgun” within the
meaning of our statute.! One cannot say, without specu-
lating, why the jury reached the verdict it did. One can
say, however, with confidence, that the jury did not reach
that verdict because they found the defendant was not
involved. I would affirm the conviction.
‘A “handgun” is defined by Maryland Code (1957, 1987 Repl. Vol.)
Art. 27, § 36F. The definition does not include all hand-held guns or
pistols. See Howell v. State, 278 Md. 389, 395-96, 364 A.2d 797 (1976).
26a
APPENDIX B
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 213
September Term, 1987
AVERY V. FERRELL
v.
STATE OF MARYLAND
Wilner
Bishop
Robert M. Bell
JJ.
Opinion by Wilner, J.
Robert M. Bell, J., dissents
Filed: January 18, 1988
Just after 7:00 on the morning of April 10, 1985, a man
brandishing a handgun and wearing a three-quarter length
gray coat, white tennis shoes, and a ski mask robbed three
women and a child standing at a bus stop in Baltimore
City. He took a purse from each of the woinen and a
school bag from the child. During the course of the rob-
bery, a shot was fired. One of the victims—Mary Hen-
derson—followed the robber as he made his escape and
reported seeing him heading toward Swann Avenue,
changing his clothes as he ran.
27a
Police officers responded promptly. From the informa-
tion obtained from the victims and from an anonymous
call, several of them went looking for the assailant in the
Uplands Apartment development, located on Swann Ave-
nue about a block from the bus stop. Officer Wagner ob-
served appellant emerging from the building at 405 Swann
Avenue dressed in a blue-gray suit and carrying a gray
jacket in one hand and a shopping bag in the other. Ap-
pellant walked away from the officer, at an increasingly
brisk pace. When he got to a corner, he dropped the
shopping bag and ran behind one of the buildings. Officer
Wagner saw appellant cross Swann Avenue and go into
the building at 400 Swann Avenue; he relayed that infor-
mation by police radio to Officer Brown, who was also on
the scene searching for the robber.
Officer Brown saw appellant go into 400 Swann Avenue
carrying a gray coat; he foliowed him in and brought him
back outside. Officer Garrity then arrived with the victims.
Inside the shopping bag, picked up by Officer Wagner,
were three purses, which the women, respectively, iden-
tified as their own, a ski mask, a glove, and a handgun
containing five live rounds and one spent cartridge. Sev-
eral of the victims identified the gray coat taken from
appellant as looking like the coat worn by the robber. Also
inside the shopping bag was a black vinyl case containing
certain papers belonging to appellant.
None of the victims was able to identify appellant as
the masked robber. Although the shopping bag certainly
was full of incriminating evidence, appellant, directly dis-
puting Officer Wagner’s testimony, contended that he
never had the shopping bag. He claimed that he was on
his way to the Westside Skill Center, that he had stopped
at 400 Swann Avenue to meet one Karen Lucas, a fellow
student at that center, and that his school papers allegedly
found inside the shopping bag, had been in his coat pocket.
28a
As a result of this incident, the State’s Attorney filed
four criminal informations against appellant (Nos.
28514739-28514742), each charging him with the following
eight offenses:
Count 1 - Robbery with a deadly weapon;
Count 2 - Attempted robbery with a deadly weapon:
Count 3 - Robbery:
Count 4 - Assault with intent to rob:
Count 5 - Assault;
Count 6 - Theft of less than $300:
- Use of 2 handgun in the commission of a
crime of violence; and
Count
Count 8 - Unlawful carrying of a handgun.
Appellant was first brought to trial on all of these
charges in November, 1985. He was convicted on all four
counts of robbery with a deadly weapon (Count 1 of each
information) and apparently on Counts 3, 5. 6. 7, and 8
of each information as well. It is not clea what happened
to Counts 2 and 4, except that there is no indication (and
appellant makes no contention) that he was acquitted on
those counts at that time.
On February 22, 1986, the court granted appeilant’s
motion for new trial on all counts set forth in the four
informations.' He was brought to trial again in June, 1986;
on that occasion, the jury was unable to reach a verdict
on any of the counts, and so a mistrial was declared.
Appellant's third trial took place in August, 1986. Pre-
cisely what occurred at that trial is not altogether clear
from the record before us—a matter we shall discuss in
In a separate (fifth) information, appellant was charged with assault
with intent to murder. The jury acquitted him of that charge.
29a
more detail later. It appears, however, that only five counts
were submitted to the jury—the four flagship counts of
robbery with a deadly weapon and one count of use of a
handgun in the commission of a felony. The jury »cquitted
of the latter offense? but, once again, was unable to agree
on Count 1.
Undaunted by its three false starts, and now down to
only one count in each information, the State decided to
try again. Prior to his fourth trial, appellant moved to
dismiss Count 1 (of eaci information) on the related
grounds of double jeopardy and collateral estoppel. His
argument centered solely on the effect of his acquittal on
Count 8. He posited that the only deadly weapon indicated
by the evidence was a handgun, that his acquittal on Count
8 sufficed as a finding that he had not used a handgun,
and that, ergo, a fact necessary to his prosecution on Count
1 had been decided in his favor and could not be re-
litigated. That conclusion, he urged, was mandated by Ashe
». Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469
(1970).
The court denied his motion, whereupon he was brought
to trial for the fourth time on Count 1 of each information.
He was convicted on all four charges, given substantial
sentences, and appeals. He raises six issues, to which,
: From everything that followed, it is apparent that the handgun
count submitted to the jury in the third trial was actually Count 7 of
the information—use of a handgun in the commission of a crime of
violence—and not Count 8, charging unlawful carrying of a handgun.
The parties have consistently referred to the acquittal as Count 8.
however. The original information contained nine counts. At some point,
Count 6, charging theft, was struck and the ensuing Counts 7, 8, and
9 were renumbered as Counts 6, 7, and 8, respectively. The “use of
a handgun” charge, originally Count 8. became Count 7. In order to
maintain consistency with the statements and arguments in the briefs,
we shall refer to the handgun charge submitted to the jury at the third
trial as Count 8
30a
nostra sponte, we have added a seventh. In the end, we
shall affirm.
(1), (2)
Double Jeopardy/Collateral Estoppel
In the “Statement Of The Case’”’ section of his brief,
appellant informed us that, at this third trial, the court
disposed of Counts 2 through 7 of each information by
granting “judgments of acquittal’ as to them. The State
did not challenge that assertion in its brief, and indeed
the docket entries for the third trial clearly indicate that
disposition.* Aware that Count 3 of each information
charged simple robbery, a necessary included element in
robbery with a deadly weapon, we questioned whether, in
light of that disposition, retrial on Count 1 might be pre-
cluded under Wright v. State, 307 Md. 552, 515 A.2d 1157
(1986). Given the generally dismal state of the record,’
however, we directed the parties to address that issue and,
if necessary, to supplement the record in order to address
it.
The entry for August 11, 1986, states: “As to each [information],
oral motion for judgment of acquittal heard and denied as to the /st
and 8th Counts and granted as to the 2nd, 3rd, 4th, 5th, 6th, 7th Counts.
Bothe, J.”
‘Just by way of example, we observe that (1) the omginal docket
entries were not included, (2) several critical State’s exhibits are omit-
ted, (3) the court reporter who recorded the proceedings of November
17 showed the case being tried before Judge Hubbard when in fact it
was tried before Judge Bothe, and (4) two quite different exhibits are
shown as admitted as State’s Exhibit 2, neither of which are included
in the record. We note further that, in clear derogation of the require-
ments set forth in The Maryland Court Reporters’ Manual, published
by the Administrative Office of the Courts, the transcripts of the fourth
trial do not contain a table of contents showing “all exhibits and where
they are marked for identification and received in evidence.” /d., Sub-
ject: Appeal Transcript of Proceedings, p.2. Indeed, the transcript for
November 17 has no table of contents at all.
———————E
3la
In response to that order, the State filed certain eXx-
cerpts from the transcript of proceedings at the third trial.
which we have accepted as a supplement to the record.
Md.Rule 1027.
At the conclusion of the State’s case at the third trial,
defense counsel moved for judgment of acquittal, arguing
briefly that the State had failed to show “that the evidence
seized was in possession of my client and that he is, in
fact, the robber that’s involved in this case.” The motion
was denied. At the end of the entire case, counsel renewed
the “motion for judgment of acquittal at this time for the
Same reasons. .. .'’ Without responding to the motion. the
court asked the prosecutor which counts he was pressing:
he replied that he wanted “the four armed robbery counts
and the four handgun counts to go to the jury.”’ The judge
then said that it was her practice in multiple robbery cases
to send only one handgun count to the jury, as she was
not inclined to give consecutive sentences if there were
multiple convictions on that count. The prosecutor indi-
cated no objection to that approach. The colloquy then
concluded thusly:
“THE COURT: Now, do you [defense counsel] have
any argument as to the first and eighth counts”
MS. JULIAN: No, your Honor. I'll submit on the
record on the motion.
THE COURT: All right. Well, it will go to the jury
as to each of the indictments [sic, informations] on
the first and eighth counts although I will only require
one verdict as to the eighth.”
From this, it is clear that the docket entry for August
11 is indeed in error. The court never entered a judgment
of acquittal as to Counts II through VII, and it certainly
never ruled, or even suggested, that the evidence pre-
sented by the State was legally insufficient with respect
to those counts. It is apparent that the State simply de-
32a
cided not to press those middle counts, as in Bynum v
State, 277 Md. 703, 357 A.2d 339, cert. denied 429 USS.
899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). The predicate
for the Court’s ruling in Wright v. State, supra, 307 Md.
552, 515 A.2d 1157—a finding by the trial court of evi-
dentiary insufficiency on a lesser included offense—is miss-
ing here. On the more complete record, therefore, we find
no merit to the issue that appeared to be very real from
the record as we received it.
Appellant's double jeopardy/collateral estoppel argu-
ment, as we observed, rests on the implication he draws
from his acquittal on Count 8. In Powers v. State, 285 Md.
269, 401 A.2d 1031, cert. denied 444 U.S. 937, 100 S.Ct.
288, 62 L.Ed.2d 197 (1979), the Court of Appeals, after
reviewing what it regarded as the relevant pronounce-
ments of the Supreme Court, concluded that
‘the doctrine of collateral estoppel applies after a
jury, at a single trial, acquits on one count of a mul-
ticount indictment and is unable to agree upon a ver-
dict on a related count of the same indictment
involving a common issue of ultimate fact, which vf
found in favor of an accused would establish his in-
nocence on both counts.”
Id., at 288, 401 A.2d 1031. (Emphasis added.)
As initially pointed out in Ashe v. Swenson, supra, 397
U.S. at 444, 90 S.Ct. at 1194, and as reiterated in Powers
and later in Wooten-Bey v. State, 308 Md. 534, 544, 520
A.2d 1090 (1987), collateral estoppel in criminal cases “‘is
not to be applied with the hypertechnical and archaic ap-
proach of a 19th century pleading book, but with realism
and rationality.’’ Quoting from Ashe, the Wooten-Bey Court
held that the reviewing court must “examine the record
of a prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and conclude
whether a rational jury could have grounded its verdict
eee
33a
upon an issue other than that which the defendant seeks
to foreclose from consideration.” Jd.
Appellant has not given us much of an opportunity to
do that, for no part of the proceedings of the third trial.
Save the few pages of transcript dealing with the dispo-
sition of Counts 2-7, furnished by the State in response
to our order, has been included in the record. We don’t
know, other than in a general way, what evidence was
presented to that third jury; nor do we know what in-
structions were given or what argument was made to the
jury.
~
Appellant’s position is very simple and direct: “(T]he
use of a deadly weapon is a necessary element for con-
viction under Article 27, Section 488. Here the Appellant
was found not guilty of the use of the handgun in the
third trial. The only State theory of the case was that a
handgun was involved.”’
The State has a somewhat more conjectural view. It
notes, on the one hand, that the robber wore a mask. that
none of the victims were able to identify appellant, and
that he was dressed differently when apprehended than
was the robber at the time of the robbery: on the other
hand, it stresses that he was in possession of the gun and
the fruits of the crime shortly before his apprehension.
From this, the State posits that the third jury may have
concluded that appellant was not the actual robber (or
wielder of the handgun) but may have entertained some
feeling, short of unanimity, that he was an accomplice of
or receiver for the actual robber, who escaped. That pos-
sibility, it argues, is not irrational under the evidence. and
it would explain the acquittal on Count 8 and the inability
to agree on Count 1. Indeed, the State notes that, at one
point, defense counsel entertained the same notion based.
apparently, on her conversation with some of the jurors
on the third jury. At sentencing in this proceeding, she
stated to the court:
34a
‘“{I] made a note and I remember going over that
prior to this trial. Some of the jurors were saying
that they could not agree, they could not say he was
the actual gunman because the man’s face was cov-
ered but they felt... [interruption by court] he was
somehow involved. So I believe they had a theory
there was more than one person involved and some
way or another he came across the bag but was not
the gunman.”
In the absence of a more complete record of the third
trial, which appears to have been available and which was
appellant’s duty to produce, it is impossible for us to make
an objective analysis of which view is sounder.’ But that
is not really the test. The test framed in Ashe, Powers,
and Wooten-Bey is ‘“‘whether a rational jury could have
grounded its verdict,’’ as the State suggests, or other than
as appellant suggests. Notwithstanding the trial judge’s
thoughts, from what is before us, we believe that the jury
could have done so. With or without an accomplice in-
struction, members of the third jury could rationally have
believed that appellant was criminally involved but was
not the actual gunman. If that were the basis of its verdict
on Count 8, the acquittal would not necessarily involve ‘‘a
common issue of ultimate fact, which if found in favor of
[appellant] would establish his innocence on both counts.”
(3)
Partiality Of The Trial Judge
Appellant complains that the trial judge, Judge Bothe,
‘“harangued defense counsel from day one, aided the able
* The trial judge seemingly rejected that notion when suggested by
defense counsel, stating that “[njo one ever proposed more than one
individual committed this crime. I don’t even believe I instructed them
on participation in the last trial because there’s never been any indi-
cation that more than one person had a handgun, used a handgun.
committed the four armed robberies. . . ."" She expressed the belief that
the jury ‘‘was totally ignorant of its responsibilities as jurors.”
35a
prosecutor whenever possible and presided in a totally nar-
row minded fashion, denying Appellant a fair and impartial
trial."" More particularly, he asserts that the judge ‘‘made
short shrift of Appellant’s collateral estoppel argument,”’
that she ‘“‘breezed through”’ a motion to Stay to allow him
to file an immediate appeal from the denial of his motion
to dismiss, that she failed to “formally rule” on a motion
to recuse herself, that she attempted to “‘assist the State’’
in its examination of Officer Brown. that she “‘went out
of her way to rehabilitate the impeached officer,”’ that she
commenced arguing .. . with defense counsel” and “went
into a diatribe with counsel which was somewhat unintel-
ligible,"” that she interrupted questioning by defense
counsel, that her “predisposition” was “overwhelmingly
against’’ appellant, and that “‘{hjer attitude was hostile.”
These are, of course, very serious charges which, if true.
would require a reversal. To determine whether, and to
what extent, they are true, we have read nearly the entire
transcript of the proceeding. Several conclusions emerge.
Appellant’s statements that Judge Bothe ‘‘made short
shrift’’ of his collateral estoppel argument and “‘breezed
through” his motion for Stay are wholly unfounded. Judge
Bothe said that she had read the written motion to dismiss
and some of the cases cited: she listened to counsel's ar-
gument but made clear that she simply did not agree with
it. Counsel continued to press a point that the judge, on
several occasions, said she found unpersuasive. The col-
loquy pertaining to that motion extended over 21 pages
of transcript. As to the motion for stay, Judge Bothe noted
that, with the three previous trials. the case had dragged
on for over a year, and she could see no good reason to
delay the ultimate resolution of appellant’s guilt or inno-
cence any longer. Her concluding statement, which ap-
pellate counsel seems to take wholly out of context, was:
“Let the record reflect I read your cases. I read your
memorandum. I read Pulley, and I cannot understand
36a
why the defendant is so reluctant to bring this case
to finality. It’s really a travesty that it has had to
go on for so long without resolution. Let’s hope this
time a conclusion can be reached.’”
Appellant did, as he claims, then ask Judge Bothe to
recuse herself
“because of the manner in which the case is pro-
ceeding and has proceeded so far, the anger expressed
at counsel while trying to put the motion on the re-
cord. the fact that he does not feel like he will get
a fair trial, having had the case heard in this court
before.”
The Court made no direct ruling on this motion; the judge
simply ignored it and went onto other business. That, of
course, was not only discourteous, but improper, appellant
was entitled to a response. It is clear, however, that the
motion was implicitly overruled, for Judge Bothe certainly
did not recuse herself, and appellant never pressed for a
response. On the merits, we find no basis at that point
for a recusal. Neither the loss of pretrial motions nor the
fact that Judge Bothe had presided at the third trial would
be sufficient grounds to require recusal; and, although we
cannot discern voice inflections or mannerisms from a tran-
script, we can find nothing in the written record to dem-
onstrate anger on the part of the judge.
The major thrust of appellant’s argument goes to the
judge’s intervention in the questioning of certain witnesses
and to arguments that took place between Judge Bothe
and defense counsel. A good bit of this took place during
counsel's cross-examination of Officer Brown, when counsel
attempted to point out and examine the officer with re-
‘The “travesty” referred to by Judge Bothe was the delay in res-
olution. In his brief, counsel accuses the judge of stating that “the case
was a ‘travesty’ to that point.” (Emphasis added.) That is a flat-out
misstatement
37a
spect to perceived inconsistencies between his current tes-
timony and testimony given at the earlier trials.
Judge Bothe did indeed step in at several points to
clarify questions posed by counsel or to give the witness
an opportunity to explain or clarify the alleged inconsist-
encies. Some of these intrusions were in response to ob-
jections by the prosecutor to particular questions or to the
form of the cross-examination; some were sua sponte but
to which no immediate objection by appellant was made;
some were wholly unnecessary and served only to provoke
an argument with defense counsel.
In Bell v. State, 48 Md.App. 669, 678, 429 A.2d 300,
cert. denied 291 Md. 771 (1981), we cautioned that:
“The trial judge’s role is that of an impartial arbi-
trator and that appearance is not generally compatible
with an inquisitorial role. It is the better practice for
a trial judge to inject himself [or herself] as little as
possible in a jury case ... because of the inordinate
influence that may emanate from his [or her] position
if jurors interpret his [or her] questions as indicative
of his [or her] opinion.”’
When a judge interjects himself or herself into a case
to any significant extent, as, despite prior admonitions
from this Court, Judge Bothe seems wont to do (see
McMillian v. State, 65 Md.App. 21, 499 A.2d 192 (1985)),
he or she invites this kind of argument and risks not only
a reversal of the conviction but embarrassing censure as
well. See Md.Rule 1231 (Md. Code of Judicial Conduct),
Canon 3A.
The major confrontation between Judge Bothe and de-
fense counsel came, as we indicated, during cross-exami-
nation of Officer Brown, the arresting officer. Most of it
arose from an attempt by counsel to show that some of
the details mentioned by the witness in his current tes-
timony had not been mentioned by him in testimony given
38a
at earlier trials. It was not clear, however, that the witness
had ever been asked about those details at the prior trials;
counsel did not show the witness the transcript of his
earlier testimony or call his attention to specific questions
and answers but simply challenged him for including some
details for the first time. The court felt that was improper;
counsel persisted; and an argument ensued.
Having considered the record as a whole and viewing
the judge’s interruptions and comments complained about
in context, we conclude, as we did in McMillian v. State,
supra, 65 Md.App. 21, 27, 499 A.2d 192, that ‘while the
court should certainly have exercised greater restraint, the
remarks were not tantamount to reversible error.”’
| (4)
Suppression Of Officer Wagner’s Testimony
Just before the actual commencement of trial, defense
counsel moved in limine to suppress the entire testimony
of Officer Wagner on the ground that he had committed
perjury. This, in turn, was based on the assertion that, at
appellant’s second trial, Officer Wagner testified that he
had observed appellant exit the building carrying the shop-
ping bag, whereas at the third trial he said only that he
saw appellant holding the bag and placing it down.
Our first response to appellant’s complaint is that it was
not preserved for appellate review. No objection was made
to Officer Wagner’s testimony at trial and no motion was
made to strike it on this or any other ground. A pretrial
motion in limine alone does not suffice to. preserve an
objection to evidence. See Offutt v. State, 44 Md.App. 670,
677, 410 A.2d 611 (1980); Eiler v. State, 63 Md.App. 439,
445-46, 492 A.2d 1320 (1985).
Even if the objection had been preserved, we would have
found it utterly without merit. How the alleged inconsis-
tency constitutes perjury was a mystery to Judge Bothe
39a
and it is a mystery to us. While there may have been
some inconsistency in the testimony given at the various
trials, a point that was forcefully brought to the jury’s
attention by defense counsel, there was no evidence of
perjury, and certainly no conviction of perjury, which is
the necessary predicate for exclusion. See Md.Code
Ann.Cts. & Jud.Proc. art., § 9-104: ‘‘A person convicted of
perjury may not testify.’’ (Emphasis added.)
(5)
Miranda
Officer Brown arrested appellant. He eventually filled
out a report known as an arrestee data sheet containing
certain information he received from appellant. The infor-
mation, Brown said, is routinely asked; it includes the
defendant’s name, address, and date of birth. Brown said
that appellant, whose name is Avery V. Ferrell, gave him
the name James Edward Ferrell.
Appellant now claims that this ‘‘arrestee information”
was taken in violation of Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), presumably
meaning that adequate warnings were not given to him
before this information was sought. Although appellant has
failed to supply us with any factual foundation for that
assertion, even if it were true there would be no error.
As we held in Grimes v. State, 44 Md.App. 580, 586, 409
A.2d 767 (1980), rev'd on other grounds 290 Md. 236, 429
A.2d 228 (1981): “Until the Court of Appeals directs us
otherwise, we shall adhere to the view that routine ques-
tions seeking a person’s name and address are not pros-
cribed by Miranda, and if the person answers such
questions, he answers are not rendered inadmissible by
the exclusionary rule announced in Miranda.” (Footnote
omitted.) Cf. Mills v. State, 278 Md. 262, 275, 363 A.2d
491 (1976).
40a
(6)
Self-Incrimination
Appellant was represented by counsel at all four of his
trials. Defense counsel in this case had represented him
at his third trial and, although the record is not altogether
clear on this, possibly at his first and second trials as well.
Appellant had elected to testify in his own defense at one
or more (perhaps all) of his earlier trials.
At the conclusion of the State’s case, following the den-
ial of appellant’s motion for judgment of acquittal, this
colloquy occurred:
‘(THE COURT:] As to the defendant's testifying or
remaining silent, he has been advised of those rights
very thoroughly I think, so I don’t know that we need
to formally do them again. You are aware of your
rights in that regard, Mr. Ferrell. Is that right?
THE DEFENDANT: (Nodding affirmatively)
THE COURT: That you can testify or remain silent.
THE DEFENDANT: Yeah.
THE COURT: I don’t think we need to review those.”’
Subsequently, without any further comment, counsel]
called appellant to testify. Appellant now claims he was
not adequately informed of his right to remain silent. We
find no basis for that assertion. See Stevens v. State, 232
Md. 33, 192 A.2d 73 (1963); State v. McKenzie, 17 Md.App.
563, 303 A.2d 406 (1973).
(7)
Request for Bench Trial
Appellant, who had elected a jury trial at his three prior
trials, contends that, on this occasion, he twice requested
a court trial and that the court erred in denying him one.
4la
This is an incomplete and misleading statement of what
occurred.
Upon resolution of the various preliminary motions, this
colloquy ensued:
“THE COURT: Do you want a Court trial or a jury
trial, Mr. Ferrell?
THE DEFENDANT: Right now?
THE COURT: Right now, because we are proceed-
ing with the trial right now.
Do you want a Court trial or a jury trial?
THE DEFENDANT: I want a Court trial.
MS. JULIAN: Just a second. May I consult with
my client?
(A discussion was held off the record between defense
counsel and the defendant.)
THE COURT: Do you want to be tried by a judge,
without a jury?
THE DEFENDANT: No.
THE COURT: You want a jury trial; don’t you?
THE DEFENDANT: Yes.
THE COURT: Then you will have a jury trial, and
I will preside over it.
MS. JULIAN: Your Honor, I was not finished.
THE DEFENDANT: Your Honor, can I say some-
thing?
THE COURT: Go back to the trial table.”
The court thereupon directed the prosecutor to call the
case, following which it recognized defense counsel:
“THE COURT: Ms. Julian?
42a
MS. JULIAN: Good morning, Your Honor. Eliza-
beth Julian, Assistant Public Defender, on behalf of
Mr. Ferrell.
THE COURT: Mr. Ferrell is praying a jury trial?
MS. JULIAN: Yes, we are requesting a jury trial.
THE COURT: Would you swear the jury, please?
THE CLERK: Members of the jury panel, please
stand and raise your nght hand.
THE DEFENDANT: I am not praying no jury trial.
(The prospective jurors were sworn on their voir
dire.)’’
Thereafter, the court conducted extensive voir dire, both
sides moved to strike or excuse various prospective jurors,
a jury was ultimately selected, and the jurors were sworn.
Not another word was said about a court trial; at no time
did either counsel or appellant express any dissatisfaction
with the fact that the case would be tried by a jury. It
is clear to us, notwithstanding appellant’s ambiguous blurt,
“TI am not praying no jury trial,”’ that, after discussion
with his attorney, he elected a jury trial.
JUDGMENTS AFFIRMED; APPELLANT TO PAY THE
COSTS.
ROBERT M. BELL, Judge, disser:ting.
Contrary to the majority opinion, reversal is not merely
warranted in this case, it is required. In my opinion, the
crux of this appeal involves the question whether appellant
received the fair trial that the Maryland and federal Con-
stitutions guarantee him. A fair reading of the entire tran-
script of the trial, not just that portion concerning Officer
Brown, reveals that appellant did not, and, indeed, could
not have, received a fair trial before this trial judge. I
therefore dissent.
43a
At bottom, the issue does involve, as the majority in
part 3 of its opinion recognizes, the court's interjection of
itself in the trial by substantial and frequent interventions
in the questioning of witnesses.
To be sure, a trial judge may question witnesses. In
doing so, however, the trial judge must stay within ap-
propriate bounds. We addressed the limits of those bounds
in two recent cases, Cardin v. State, 73 Md.App. 200, 533
A.2d 928 (1987) and Smith v. State, 66 Md.App. 603, 505
A.2d 564, cert. denied, 306 Md. 371, 509 A.2d 134 (1986).
In each, we quoted, with approval, from Bell v. State. 48
Md.App. 668, 678, 429 A.2d 300 (1981):
The trial judge’s role is that of an impartial arbitrator
and that appearance is not generally compatible with
an inquisitorial role. It is the better practice for a
trial judge to inject himself as little as possible in a
jury case, United States v. Green, 429 F.2d 754. 760
(D.C.Cir.1970), because of the inordinate influence that
may emanate from his position if jurors interpret his
questions as indicative of his opinion. See, also. Pat-
terson [v. State, 275 Md. 563, 578-80, 342 A.2d 660
(1975)]. The appearance that a judge may have aban-
doned his role as an impartial arbitrator. is especially
hazardous when cross-questioning a defendant.
Yet, if counsel have faltered in their advocacies, it is
not improper for the trial judge to be ‘meticulously
careful to make sure that the full facts [are] brought
out”, Jeffries v. State, 5 Md.App. 630, 632, (248 A.2d
807] (1959), or to seek to discover the truth when
counsel have not elicited some material fact. or indeed
when a witness has not testified with entire frank-
ness. Annot., 84 A.L.R. 1172, 1193 (1933). Such ques-
tioning may even bear upon the credibility of a
defendant in a proper circumstance. Madison v. State,
200 Md. 1, 12 [87 A.2d 593] (1952): King v. State,
(14 Md.App. 385, 287 A.2d 52, cert. denied. 265 Md.
44a
740 (1972)} at 394 [287 A.2d 52]. This should be
achieved expeditiously, however, if at all, for a pro-
tracted examination has a tendency to convey to a
jury a judge’s opinion as to facts or the credibility of
witnesses.
Cardin, 73 Md.App. at 229-230, 533 A.2d 928; Smith, 66
Md.App. at 618-19, 505 A.2d 564.
The Court of Appeals has provided additional guidance.
In Vandegrift v. State, 237 Md. 305, 311, 206 A.2d 250
(1965), the Court held that “‘[t]he questioning by the trial
judge showing his disbelief of the witness’ testimony [is]
beyond the line of impartiality over which a judge must
not step.’’ There, the trial judge questioned the witness
repeatedly on the same subject matter and reminded the
witness that he was under oath and subject to penalty for
perjury. See also Marshall v. State, 291 Md. 205, 213, 434
A.2d 555 (1981), in which the Court of Appeals stated:
... [A] Judge presiding over a jury trial ... should
exercise thie] right [to interrogate witnesses to clarify
issues] sparingly. It is a far more prudent practice
for the judge to allow counsel to clear up disputed
points on cross-examination, unassisted by the court.
In this manner, the judge is most likely to preserve
his {or her] role as an impartial arbiter, because he
[or she] avoids the appearance of acting as an ad-
vocate.
The Court in Brown v. State, 220 Md. 29, 39, 150 A.2d
895 (1959), disapproved the questioning of a defendant by
the trial judge in such a way as to “indicate sarcastically,
so that the jury could not have failed to understand, that
the judge did not believe [the story the defendant] was
telling... .”’
The permissible bounds of interjection and inquiry thus
appear to be clear. A trial judge should interject himself
or herself as little as possible into the trial of the case,
45a
giving due opportunity for the advocates to present, in
their own way, the facts in Support of their cause. See
Marshall, 291 Md. at 214. 434 A.2d 555. When the judge
does interject himself or herself, it should be solely for
the purpose of clarifying or sharpening issues or eliciting
material facts which the advocates have not presented. The
more protracted the examination of a witness, the more
likely it is that the examination will convey to the jury
the trial judge’s opinion concerning the credibility of that
witness.
Turning to the case sub Judice, the majority has very
considerately characterized the trial judge’s actions in this
Case as stepping in “‘at severa] points to clarify questions
posed by counsel or to give the witness an opportunity to
explain or clarify the alleged inconsistencies.”’ This char-
acterization is not Supported by the record. On the con-
trary, the record discloses that the trial judge, totally
oblivious of any bounds. interjected herself repeatedly, into
the proceeding. In fact. there were more than a hundred
such instances. The judge participated, to some extent, in
the questioning of each witness called to testify.
To be fair, some of the trial judge's interjections were
innocuous and some were for the purpose of clarifying
questions posed by counsel: the vast majority of them.
however, were much more serious. A few examples are
demonstrative. During the State's case. the court's inter-
ventions included participating freely and frequently in the
direct examination of witnesses, | assisting the assistant
State’s Attorney in the Presentation of his case? when he
By way of example, the judge interrupted the direct examination
of Mary Henderson and Cherome Hines, witnesses to the robbery, as
well as Officers Brown and Wagner. on several occasions, and pro-
ceeded to conduct the questioning of those witnesses.
* During the State’s examination of Officer Brown. the trial judge
interrupted direct examination to direct the officer's attention to ap-
pellant for the purpose of identification. She also assisted the State by
OO
46a
did not wish help, and, indeed, resisted it;’ interruptmg
cross-examination by defense counsel to assist State’s wit-
nesses in responding to questions;* and explaining the tes-
timony of State’s witnesses.® The trial judge also rephrased
questions, rather than ruling on objections by defense.*
developing testimony concerning the time that elapsed between the
officer seeing a gun and apprehending appellant. Similarly, while Officer
Wagner was on the witness stand, the judge stated, ‘I think he can
tell us what the description was’’, thus suggesting that the State ask
Officer Wagner to relate the description of the robber given him by
one of the witnesses. Other efforts to assist the State in similar ways
occurred during the testimony of Hines and Barbara Means.
In the case of Means, the judge, as she did during Brown's testi-
mony, asked the witness to identify the robber, which, as the State
reminded her, she had already done.
When the judge reminded the State that it had not questioned
Officer Brown about a “bmefcase’’ which the police had recovered, the
State had to point out to her that his concern at that time was what
the officer observed at the scene and that the officer had not seen the
“briefcase at the scene. Also see the reference to Barbara Means in
n. 3, supra.
‘Examples of this case be found during the cross-examinations of
Officers Brown, Garnty, and Wagner and of Mary Henderson. In the
case of Officer Brown, the judge provided assistance on more than one
occasion. On one occasion, after defense counsel had read from the
officer's prior testimony, and before the officer had answered a question
based on that prior testimony, the judge prompted:
“If you previously testified that you had the coat when you went
out of the building, would that be what happened, that you did
have the coat?”
On another, the court interrupted defense counsel to observe:
“Ms Julian, he does not deny what he said before and | believe
he said if you have a record saying he said it before, that’s what
he said. Is that right officer?”
The record does not reflect that the officer said any such thing.
In addition to explaining testimony given by Officer Brown, the
trial judge also interpreted the testimony of Officer Wagner.
*A good example of this occurred during the State's direct exami-
ee ee
47a
Moreover, in addition to correcting defense counsel in front
of the jury and Suggesting how questions should be
phrased, the trial judge raised objections sua sponte.” Dur-
ing the defense case, the judge, without regard to, and in
fact, in spite of, the defense Strategy, cross-examined de-
fense witnesses during their direct examination.* In some
nation of Hines. Although appellant's counsel objected to the question,
“Were you able to see anything about this individual although you
couldn't see his facial features”’”’. the judge never ruled on the objection.
Instead, she instructed the witness:
“You can tell us what you can tell us about what he was wearing
what he looked like insofar as you were able to see him. She
already said
Tell us everything you can remember of what you were able to
observe of him.”
Other examples occurred during the testimony of Officer Brown and
Mary Henderson
During the cross-examination of Officer Brown, the following col-
loquy occurred
[by defense counsel] You also reported that Mrs. Henderson stated
that she saw the suspect go into 4608 Manordene and exit a short
time later after the actua! robbery wearing a light windbreaker
carrying a biack duffel bag and then run North through the com-
plex of—
The Court: This is all hearsay. This is something she told some-
body else”
The Witness [Off Brown]: This was told Officer Garrity
Mr. Townsend [Prosecutor]: I have had a continuing objection to
this
The Court: I sustain
The record does not reflect that a continuing objection had been granted
the prosecutor. Later. the court sustained an objection which was never
made. Although defense counsel pointed this out to her. the judge did
not respond.
‘In addition to appellant, the trial judge cross-examined appellant's
brother (concerning the distance from Westside Skill Center, where
48a
instances, the trial judge anticipated issues which had not
yet been raised and, in at least one other, questioned a
witness concerning his testimony in a prior trial.*
Throughout trial, the trial judge asked questions repe-
titious of testimony already given by the witness, thus
emphasizing that testimony for the jury.
Specific reference to the trial judge’s actions during the
testimony of appellant and Wheatiey further demonstrates
the egregiousness of the judge’s conduct. The judge in-
terrupted appellant’s direct examination to question ap-
pellant or make observations on seven occasions. On the
first, the judge referring to appellant’s reference to a Kuti,
asked, ‘“‘You mean a muslim type thing?’ The next three
interruptions were for the purpose of asking questions that
rehashed testimony previously given by appellant, thereby
emphasizing it to the jury. During cross-examination, ihe
judge interrupted the prosecutor to question appellant
about using other names. In addition, when appellant be-
gan to respond broadly to a broad question asked by the
prosecutor, the judge instructed him to “‘just answer the
question’, and immediately thereafter interpreted his ex-
planation as; ‘‘You mean that he [a police officer] lied.”’
The judge’s participation in redirect examination continued
to be frequent and active.
The trial judge’s interjections during the testimony of
Wheatley were more serious. Demonstration of the cor-
appellant testified he was going, to 904 West Lexington Street, where
appellant lived), his mother (concerning the relationship between ap-
pellant and a defense witness), L. Leurs, an investigator for the public
defender, and Delano A. Wheatley, the defense witness who claimed
to have seen the robber, whom he testified was not appellant
* This occurred during the cross-examination of Leurs.
° This is significant because Henderson had testified that appellant
was wearing a ‘muslim type of head covering” after he had changed
clothes and because the judge did not await the completion of direct
examination to begin her questioning
49a
rectness of this assertion is perhaps best achieved by quot-
ing pertinent excerpts directly from the record, as
appropriate. The trial judge's first interruption came early
in the direct examination of Wheatley and it was for the
purpose of asking the witness what time he had first seen
appellant. The next interruption occurred as follows:
Q. (By appellant’s counsel) Let me ask a general ques-
tion. Under what circumstances did you see Mr. Fer-
rell that day?
A. I had noticed Mr. Ferrel] being arrested as I was
leaving my girlfriend’s house one morning. That’s how
I remember his face. Right now I am presently in-
carcerated and I had noticed Mr. Ferrell at the jail
where I am being detained and I had remembered his
face from being arrested.
Q. Had you noticed anything unusual before you no-
ticed the arrest?
A. Yes, ma’am, I did. Early in the morning I noticed
a guy running by me removing a mask from his head.
The Court: You say you were Staying at your girl-
friend’s house?
The Witness: Yes, I was there the night before.
The Court: Where does she live?
The Witness: On Swan. Upland Apartments.
The next significant interruption occurred after Wheatley
had testified concerning the complexion and weight of the
robber. At that time the court interrupted to ask ‘What
do you consider yourself to be?”. to which the witness
replied, ‘‘Well, I’m dark or medium dark | suppose.”’ When
the focus of the examination turned to Wheatley’s obser-
vation of appellant’s arrest, the following occurred:
50a
Q. (By appellant’s counsel): Now, did there come a
time where you saw the arrest? That’s what you've
testified, correct?
A. Yes. ma’am. I had noticed Mr. Ferrell being ar-
rested after I had left my girlfriend's house about
twenty, thirty minutes later and—
The Court: Twenty or thirty minutes had gone by
since you saw the man with the—taking off the mask?
The Witness: About. Yes, ma’am. I got the cigarettes,
went back to my girlfriend’s house and had breakfast.
In that amount of time, maybe thirty minutes is when
I left for good at which time I came out. This is when
I noticed Mr. Ferrell.
The Court: Being arrested.
The Witness: Yes, ma’am. That’s correct.
The Court: You had never seen him before that day”
The Witness: No, ma’am, I had not.
Similar interruptions occurred during Wheatley’s cross-ex-
amination. After the prosecutor had explored the circum-
stances under which Wheatley had seen appellant being
arrested and had begun to develop the facts from which
it could be determined whether Wheatley’s identification
was reliable, perhaps the most significant interjection on
the part of the trial judge occurred:
Q. (By the prosecutor) Then you went into your girl
friend’s house, stayed twenty or thirty minutes and
then when you came out you saw the defendant whom
you now recognize. You didn’t know him at the time.
A. No, sir, I did not.
Q. And you haven’t seen him for the past twenty
months until very recently.
A. That’s correct.
5la
Q. I believe you told us very candidly you just met
him during your recent incarceration.
A. Yes, sir. I noticed him, you know. He is housed
in the same section of the jail.
The Court: How much of a look at him did you get
that day when you saw him being arrested?
The Witness: Pretty good. I stopped and signified.
The Court: Did you stop and watch what was hap-
pening?
The Witness: Yes, ma’am. Him being arrested. I
stopped and watched.
The Court: What all did you see?
The Witness: The average arrest procedures.
The Court: Tell us.
The Witness: His hands being cuffed behind his back
and put into the—into the, you know, truck like thing.
The Court: Did you see anybody else there besides
police?
The Witness: Ivo. just police, ma'am. Just police.
Q. (By prosecutor) You don’t recall seeing a number
of ladies of all ranges in age relatively old to quite
young?
A. No, sir. I couldn’t actually say.
The Court: How was he dressed?
The Witness: I can’t remember as a matter of fact.
ma'am, his exact clothing.
The Court: Well, the next time you saw him was
twenty months later?
The Witness: Yes, ma’am. About.
52a
The Court: But you remembered his face?
The witness: Yes, ma’am, I did. As a matter of fact,
the shape of his head I remember.
While it is true that we do not have the benefit of
having heard and seen the witnesses testify live, several
things are obvious from the examination of Wheatley by
the trial judge. First, the trial judge did not wait for the
advocates to do their job before plunging in and asking
questions. Second, the questions the trial judge asked were
those affecting the credibility of the witness. Third, and
most important, given the nature of the questions the trial
judge asked and the context in which they were asked,
“the jury could not have failed to understand, that the
trial judge did not believe the story [the witness] was
telling... .”’
As I read the transcript, it is clear that the trial judge
was not an impartial arbitrator, but an advocate for the
State.
The majority acknowledges that some of the trial judge’s
interventions were ‘‘wholly unnecessary and served only
to provoke an argument with defense counsel’’, that ‘‘the
court should certainly have exercised greater restraint’,
and further, that this Court has previously admonished the
trial judge for past indiscretions of this kind. See Mc-
Millian v. State, 65 Md.App. 21, 499 A.2d 192 (19885).
Nevertheless, the majority holds that the judge’s inter-
ruptions and comments were not tantamount to reversible
error. It observes in passing that many of the sua sponte
interjections and comments were not “immediately ob-
jected to’’,!! which seems to suggest that had there been
objections, the result might have been different. I can
'' Appellant’s counsel did object on one occasion to the court's in-
terruptions and moved for mistrial. In the colloquy that followed, the
trial judge declared: “I only interrupt when the questions are im-
proper.”’
NA ween ees eee
i ti
53a
concur with the majority only insofar as it acknowledges
error on the part of the trial court. As indicated, I consider
the error to mandate reversal. In that regard, I call to
the majority’s attention the case of Elmer v. State, 239
Md. 1, 9, 209 A.2d 776 (1965) in which the Court of
Appeals, commenting upon the trial judge’s declaration, in
front of a jury, that a witness was hostile, held:
We think under the unusual circumstances here pre-
sented and the unquestionably harmful effects of the
judge’s remarks in the presence of the jury as we
point out in more detail below, the accused was not
afforded a fair and impartial trial and he was, there-
fore, denied due process of law, which, under the
authorities cited above, would call for our review of
the propriety of the court’s remarks, even if no ob-
jection had been made thereto.
The authorities cited by the Court included Bryant v. State,
207 Md. 565, 115 A.2d 502 (1955); Wolfe v. State, 218 Md.
449, 146 A.2d 856 (1958) and Rowe v. State, 234 Md. 295,
199 A.2d 785 (1964).
In Bryant, although holding that the record did not show
that the trial judge’s actions deprived the accused of a
fair and impartial trial, the Court commented that: ‘‘[t]he
degree of severity of the trial judge’s rebukes of an
attorney, when the occasions require them, is left to the
discretion of a judge ‘as long as they do not prevent a
fair and impartial trial’’”’. 207 Md. at 585, 115 A.2d 502.
Similarly in Wolfe, in which a trial judge, attempting to
assist an unrepresented defendant, made prejudicial re-
marks in the presence of the jury, the Court of Appeals,
on its own motion, took ‘‘cognizance of and correct[ed] the
... error even though such error may not have been prop-
erly includable in the assignment of errors... .’’ 218 Md.
at 455, 146 A.2d 856. The Court reiterated the general
rule, however, that generally an issue may not be raised
on appeal unless preserved by appropriate objection. Rather
54a +
than improper remarks by the trial judge, Rowe involved,
the effect of the court’s failure to instruct the jury as to
a finding of insanity. Even though no assignment of error
was made as to that issue, the Court stated, ‘‘we think
we must, under the unusual circumstances of this case,
take cognizance of the plain error sua sponte.” 234 Md.
at 302, 199 A.2d 785.
I also remind the majority that at issue here is whether
we should exercise our discretion to review an issue which
was not raised and decided below. Maryland Rule 1085
contemplates that an appellate court ‘‘will not ordinarily
decide any point or question which does not plainly appear
by the record to have been tried and decided by the lower
court.” Its prohibition, however, is not absolute, as evi-
denced by the “use of the adverb ‘ordinarily’ [which] im-
plies that there may be extraordinary circumstances in
which review will be granted despite the lack of a ruling
at the trial level.’’ Smith v. State, 64 Md.App. 625, 632,
498 A.2d 284 (1985). As this Court observed in Smith, ‘‘In
the final analysis, the question of whether to review an
issue not raised and decided below is discretionary with
the appellate court.’’ 64 Md.App. at 632, 498 A.2d 284,
citing Booth v. State, 62 Md.App. 26, 38, 488 A.2d 195
(1985). Moreover, like the exercise of discretion to notice
plain error, “*. . .this discretion should be exercised in favor
of review when the ‘unobjected to error [is] compelling.
extraordinary, exceptional or fundamental to assure the
defendant a fair trial’ ’’. 64 Md.App. at 32, 498 A.2d 284,
quoting State v. Hutchinson, 287 Md. 198, 203, 411 A.2d
1035 (1980). It cannot be gainsaid that the error in this
case easily meets each of those criteria.
Thus, it is plain that ‘“‘when the trial result[s] in a denial
of due process’, Elmer, 239 Md. at 8, 209 A.2d 776, the
Court should review the propriety of the actions of the
trial court sua sponte or, at the very least, at the sug-
gestion of appellant, even if that suggestion is presented
for the first time on appeal.
55a
To the majority’s suggestion that under these circum-
stances, simply an admonition is sufficient, the following
should be noted. An admonition has not worked in the
case of this trial judge in the past and, furthermore, an
admonition will not ameliorate the adverse effects suffered
by appellant as the result of the trial judge’s actions. It
is my view that the failure to take definitive action in this
case effects a travesty of justice and undermines the very
principles of due process contained in the federal and
Maryland Constitutions.
Because the trial judge’s interjections in the trial denied
appellant a fair trial and due process of law, I would
reverse appellant’s convictions and remand the case for a
new trial. Moreover, I would instruct that the new trial.
be conducted before another judge.
I also have a problem with the majority’s resolution of
appellant’s double jeopardy/collateral estoppel issues. I
agree with appellant’s ‘‘simple and direct’’ position: ‘‘[T]he
use of a deadly weapon is a necessary element for con-
viction under Article 27, Section 488. Here the Appellant
was found not guilty of the use of the handgun in the
third trial. The only State theory of the case was that a
handgun was involved.’’ Although appellant admittedly did
not provide us with a transcript of the third trial, that
appellant’s prernise is correct is obvious and is not seri-
ously contested. Mere conjecture, which is the only stuff
of which the State’s position is made, does not suffice to
sustain the majority’s holding. This is particularly so where,
as here, neither the State nor the trial judge, during the
argument on appellant’s motion to dismiss, disputed, or
even suggested, that the State’s theory of the case was
that appellant acted in concert with someone else, or that
the evidence tended to prove such a theory. All the State
posits is, as the majority acknowledges, the conjecture that
‘the third jury may have concluded that appellant was not
the actual robber (or wielder of the handgun) but may
have entertained some feeling, short of unanimity, that he
56a
was an accomplice of or receiver for the actual. robber,
who escaped.”’
I also have difficulty with the majority’s position with
regard to the election of a jury trial issue. At the conclu-
sion of the colloquy with the court concerning his election,
appellant specifically stated, in what I consider to be un-
ambiguous terms, that “I am not praying no jury trial.”’
The court did not respond to that statement or conduct
any inquiry with respect to it. I think that, at the very
least, there should have been some inquiry made by the
trial court to ensure that appellant’s election was freely
and voluntarily made. Since that was not done, I believe
that the case should be reversed for that reason as well.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.