WAYNE BYRON WARREN, JR.
STATE OF MARYLAND
from the Circuit Court for Caroline County, Raymond E. Beck,
BY: Amy E. Brennan (Paul B. DeWolfe, Public Defender on the
brief) all of Baltimore, MD, FOR APPELLANT.
BY: Cathleen C. Brockmeyer (Brian E. Frosh, Attorney General
on the brief) all of Baltimore, MD, FOR APPELLEE.
Deborah S., Leahy, Moylan, Charles E., Jr. (Retired,
Specially Assigned), JJ.
Md.App. 598] Charles E. Moylan, Jr.
subject is double jeopardy, sometimes referred to as "
res judicata in prison gray." The appellant, Wayne Byron
Warren, Jr., was convicted in the Circuit Court for Caroline
[226 Md.App. 599] County in a non-jury trial of four separate
counts, each charging Sexual Abuse of a Minor. On this
appeal, the appellant contends that three of the charges
against him -- Counts 1, 2, and 3 -- should have been
completely barred by his protection against double jeopardy,
and that most of the remaining charge, Count 4, was similarly
barred by the Double Jeopardy Clause of the Fifth Amendment.
The case presents us with a challenging array of finely
nuanced double jeopardy problems.
appellant married his wife, K., in July of 2008 and they
moved to a home in Greensboro in Caroline County. Also as
part of the family unit were K.'s four daughters by
earlier relationships: C., who was at that time going into
the fifth grade; J., who was going into the third grade; F.,
who was starting the first grade; and E., who was four years
old. It was J., the second oldest of the appellant's
step-daughters, who became the victim of his sexual
predations over the course of the
next five years. J. was eight years of age when the course of
abusive conduct began and 13 years old when it was brought to
an abrupt halt.
January of 2013, C., who was two years older than J.,
realized that she was being approached by the appellant for
illicit sexual activities and effectively blew the whistle on
the appellant and his behavior. C. left home, later
" I knew that he knew that I didn't do it, um, and
that was my last straw. I was tired of, I was tired of the
training, I was tired of how I was treated at home. I was
tired of him being a jerk. I was tired of my mom falling for
everything. So I packed up a bag and left."
stayed at a friend's house for the weekend, during which
she contacted the police to inform them about nude
photographs that the appellant had taken of her and her
sisters. It was at that point that the Caroline County
Department of Social Services (" DSS" ) began an
investigation of the family. Initially, J. did not tell DSS
about anything other than the [226 Md.App. 600] nude
photographing because she was afraid that " something
bad was going to happen."
of 2013, however, J. did reveal to DSS that on several
occasions she woke up to find the appellant in bed with her
and touching her genital area. The appellant's
stepdaughters were removed from the family home in June of
2013 and went to live with their aunt and uncle. A week after
that removal from the home, J. revealed to her mother that on
three occasions she had been forced to perform fellatio on
the appellant. DSS was in turn informed by the mother.
First Class Nathaniel Van Sant of the Maryland State Police
became involved in the case against the appellant in June of
2013. On September 6, 2013, the appellant was arrested and
gave an audio-tape statement to Trooper Van Sant, implicating
himself in a wide variety of questionable and suggestive
activities with J. and with several of her sisters. He
admitted taking a series of naked photographs but explained
that they had been taken for the purpose of monitoring weight
loss. He admitted to subjecting at least two of his
stepdaughters, including J., to naked ice baths but explained
that they were part of a martial arts training program. He
denied, however, forcing J. to perform fellatio.
October 28, 2013, the State filed an eight-count criminal
information against the appellant. Following a jury trial on
April 21-22, 2014, the appellant was convicted on two of the
eight charges: Sexual Abuse of a Minor and a sexual offense
in the second degree. He was sentenced to seven and one-half
years of imprisonment on each count, the sentences to run
consecutively for a total sentence of fifteen years. He was
also ordered to register as a Tier III sex offender.
appellant appealed those convictions to this Court. In an
unpublished 24-page opinion, this Court affirmed the
convictions. Warren v. State, No. 1482,
September Term, 2014 (filed on October 23, 2015). The
three [226 Md.App. 601] contentions dealt with in that
opinion have little pertinence to the double jeopardy issue
now before us.
Evidence and a New Beginning
first case was being presented to the jury, the State
understandably could have had some qualms about the strength
of its evidence. Although there was some modest
corroboration, the State's case essentially rested on the
credibility and the persuasiveness of a 13-year-old girl, a
13-year-old girl whose memory as to some
events was being called upon to reach back five years. As to
each of the eight counts, the State had no precise dates and
was left to allege that the actions with which the appellant
was charged had occurred at some unspecified time "
between July 1, 2008 and December 31, 2012." That was a
four and one-half year stretch. Understandably, the State
could not have felt that it was holding a pat hand.
therefore, as if the cavalry were charging to the rescue when
a Homeland Security investigator informed the prosecutor on
the first day of trial that Homeland Security investigators
had been able to retrieve irrefutable photographic evidence
establishing four acts of sexual abuse by the appellant and
pinpointing a precise date for each such act. When the
appellant and his wife had moved in with the appellant's
father in February of 2014, they had filled a storage pod
which was picked up by a private company and taken to its
warehouse in Delaware. On February 7, the wife met Trooper
Van Sant at the storage facility and gave him permission to
conduct a search of the contents.
thumb drives, six micro discs, one adapter, six hard drives,
a tower and a disc labeled " Photos 1" were seized.
Trooper Van Sant took the electronic storage materials to
Homeland Security investigators to see what, if anything,
could be retrieved. All of the images that were ultimately
retrieved had earlier been ostensibly deleted, but the
computer had stubbornly stored the deleted images in "
unallocated clusters." It was in the early afternoon of
the first day of two trial days that the State received
either copies of the relevant [226 Md.App. 602] images or
information describing them. Three of the four sets of images
squarely corroborated incidents of alleged abuse testified to
by J. Through technological wizardry, a shaky case had
ripened into what could have been an ironclad winner.
trial court ruled, however, that the State would not be
permitted to use any of the images retrieved by Homeland
Security because neither the appellant nor defense counsel
had seen the images in time to prepare to defend against
them. In the jury verdict of the next day, the State
subsequent thinking of the State is relatively simple to
follow. Since that first-class evidence produced by Homeland
Security had not been used against the appellant at his first
trial, then, lest it be wasted, why not make it the basis for
an additional trial? Double jeopardy might not have seemed to
be a problem because the new evidence had never been used
against the appellant. It had never before placed him in
18, 2014, a new indictment against the appellant was handed
down. The new indictment was drawn in four counts. Each count
was designed to embrace one of the actions depicted by the
photographic images (or sets of closely related images)
retrieved by the Homeland Security experts from the discarded
entrails of the appellant's computer. Each of the four
counts charged precisely the same crime -- Sexual Abuse of a
Minor. The appellant moved, unsuccessfully, to dismiss the
new indictment on the basis of double jeopardy.
terms of its timing, the new indictment was presented just
three months after the guilty verdicts had been rendered at
the first trial and one month before the appellant was
sentenced, on August 20, 2014, to 15 years' imprisonment
on his two convictions.
non-jury trial, on January 13-14, 2015, the appellant was
convicted on all four counts of the new indictment. On
February 2, 2015, he was sentenced to a
total of 55 years [226 Md.App. 603] imprisonment with all but
20 years suspended. The sentences were to run consecutively
to each other and to any sentences already being served. This
appeal followed on double jeopardy grounds.
immediate problem, of course, is to decide how much, if any,
of the jeopardy in which the appellant was placed at his
second trial of January 13-14, 2015, should have been barred
by the earlier jeopardy in which he stood in the course of
his first trial on April 21-22, 2014. Involved are at least
two very fundamental and critical questions: 1) When
precisely does jeopardy attach? and 2) What is the scope of
the jeopardy that then attaches?
Does Jeopardy Attach?
" ...; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb;
Const. amend. V.
jeopardy, as a plea in bar and not a defense on the merits,
has a history rooted deep in English common law. As this
Court explained in Copsey v. State, 67 Md.App. 223,
225, 507 A.2d 186 (1986):
" 'Double jeopardy' was a convenient umbrella
term adopted by Sir William Blackstone to cover, along with
several other closely related pleas no longer pertinent, the
two common law pleas in bar of autrefois acquit (former
acquittal) and autrefois convict (former conviction). These
were not and are not general issue pleas for purposes of
defending upon the merits. They were and are pleas in bar,
intended to be interposed in advance of a contemplated
subsequent trial for the purpose of foreclosing that
plea in bar of double jeopardy embraces, inter alia, both the
plea of former acquittal and the plea of former conviction.
The Copsey opinion, 67 Md.App. at 225-26, further pointed
[226 Md.App. 604] " The purpose served by the plea of
former acquittal is that of preventing a defendant who has
once survived his initial jeopardy from being 'twice
vexed' by a fresh exposure to the hazard of conviction
for that same offense. The purpose served by the plea of
former conviction is that of preventing a defendant who has
once been convicted of an offense from being exposed to the
hazard of being twice punished for that same offense."
federal constitutional law of double jeopardy and the
Maryland law of double jeopardy are now one and the same. It
was not always so. Gilbert and Moylan, Maryland Criminal Law,
§ 37.1, " State Double Jeopardyor Federal Double
Jeopardy," p. 432, explains:
" The Fifth Amendment provision against double jeopardy,
originally applicable only to the Federal Government, was
enacted as part of the original Bill of Rights in 1791. Quite
independent of the federal protection, 45 of the American
states have also included double jeopardy protections in
their own Bills or Declarations of Rights. Five of
them, including Maryland, have not.
Each of these five has, however, included the protection
against double jeopardy as part of its own common law."
(Footnote in original).
1969, however, Benton v. Maryland, 395 U.S. 784, 89
S.Ct. 2056, 23 L.Ed.2d 707 (1969), held for the first time
that the Fifth Amendment protection against double jeopardy
was incorporated into the Due Process Clause of the
Fourteenth Amendment and was, therefore, binding on the
Md.App. 605] In applying the two ancient pleas in bar of
autrefois acquit and autrefois convict, the former jeopardy
was deemed to attach at common law only when the trial
verdict, of conviction or acquittal, was actually rendered.
Maryland continued to follow that common law logic until we
were embraced by the federal Fifth Amendment in 1969. The
constitutional law of double jeopardy had grown, in contrast
to the common law and to earlier Maryland law, into an
umbrella concept that embraced such related protections as
mistrial/retrial law and collateral estoppel.
Justice Stewart explained in Crist v. Bretz, 437
U.S. 28, 33-38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), the
inclusion of those other protections and the full
implementation, therefore, of the now broader
conceptualization of double jeopardy required that the
attachment of jeopardy be moved forward from the end of the
trial when a verdict is rendered to the [226 Md.App. 606]
very beginning of the trial. Under the prevailing federal
interpretation of the double jeopardy protection,
indisputably now binding on Maryland, jeopardy attaches in a
jury trial at the moment the jury is sworn. As the
Supreme Court held, 437 U.S. at 38:
" The federal rule that jeopardy attaches when the jury
is empaneled and sworn is an integral part of the
constitutional guarantee against double jeopardy."
appellant's first trial was a jury trial. The jeopardy
that will have a preclusive effect in this case, therefore,
attached as of the moment the jury was sworn on the morning
of April 21, 2014.
We will measure the jeopardy in which the appellant stood as
of that moment and not as of some later time, such as when
opening statements were made or when two of the eight counts
against him were nol prossed or when the jury was instructed
or when the case was submitted to the jury or when the
verdicts were rendered. The appellant was at risk from the
opening gun, ...