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Warren v. State

Court of Special Appeals of Maryland

January 29, 2016


         Appeal from the Circuit Court for Caroline County, Raymond E. Beck, JUDGE.

         ARGUED BY: Amy E. Brennan (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, FOR APPELLANT.

         ARGUED BY: Cathleen C. Brockmeyer (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, FOR APPELLEE.

          Eyler, Deborah S., Leahy, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.


Page 1129

         [226 Md.App. 598] Charles E. Moylan, Jr.

         The 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.

         General Background

         The 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

Page 1130

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.

         In 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 explaining:

" 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."

         C. 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."

         In May 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.

         The First Prosecution

         Trooper 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.

         On 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.

         The 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.

         Last-Minute Evidence and a New Beginning

         As that 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

Page 1131

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.

         It was, 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.

         Four 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.

         The 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 nonetheless prevailed.

         The Second Prosecution

         The 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 jeopardy.

         On July 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.

         In 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.

         After a 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

Page 1132

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.

         Measuring Jeopardy

         Our 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?

         When Does Jeopardy Attach?

" ...; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ..."

         U.S. Const. amend. V.

         Double 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 trial."

(Emphasis supplied).

         The 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 out:

[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." [1]

(Emphasis supplied).

          The 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,[2] including Maryland, have not.

Page 1133

Each of these five has, however, included the protection against double jeopardy as part of its own common law."

(Footnote in original).

         In 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 states.

          [226 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.[3]

         As 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.[4] 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."

         The 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.

Page 1134

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, ...

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