In Re Kevin E.

938 A.2d 826, 402 Md. 624, 2008 Md. LEXIS 1
CourtCourt of Appeals of Maryland
DecidedJanuary 3, 2008
Docket27 Sept. Term 2007
StatusPublished
Cited by8 cases

This text of 938 A.2d 826 (In Re Kevin E.) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Kevin E., 938 A.2d 826, 402 Md. 624, 2008 Md. LEXIS 1 (Md. 2008).

Opinions

GREENE, J.

“A trial may be held although a defendant elects to present no evidence. Similarly, a trial may be held notwithstanding the refusal of the State to participate.”

Daff v. State, 317 Md. 678, 689, 566 A.2d 120, 126 (1989). In this case, we are asked to decide whether principles of double [628]*628jeopardy apply to bar any further proceedings to adjudicate appellant, Kevin E., a juvenile, a delinquent for the offenses alleged in this case. We shall hold that on the basis of Maryland common law double jeopardy principles, appellant’s adjudication on the charges was held, as scheduled, notwithstanding the State’s failure to present any evidence at the adjudicatory hearing.1 Based upon the substance of what occurred at that hearing and the juvenile court judge’s adoption of the master’s recommendation, we shall hold that appellant was “acquitted” by reason of the insufficiency of the State’s evidence. Accordingly, any further adjudication of the alleged charges is barred.

Background

In the present case, appellant appeared before a juvenile court master for purposes of an adjudicatory hearing on charges of violating the controlled dangerous substance laws. On the date scheduled for adjudication of the charges, the State requested a postponement and the master assigned to hear the juvenile delinquency matter denied that request. The prosecutor handling the case then said, “[t]he State rests, Your Honor.” Defense Counsel thereafter moved to dismiss the delinquency petition and the master granted the motion, issuing the following report and recommendation2 of dismissal [629]*629to the Circuit Court for Baltimore City, sitting as a juvenile court: “State notes that necessary police officer not present (spoke to him earlier today) and unable to appear for proceeding. State presents no further evidence and rests. Counsel for respondent orally Motions for dismissal of petition. ” (Emphasis added.)

On the same day that the master submitted his report and recommendation, June 28, 2006, the juvenile court judge signed an Order, adopting the master’s recommendation. Although the State filed timely exceptions to the master’s proposed dismissal, the Circuit Court did not conduct an exceptions hearing until July 12, 2006, approximately two weeks after the juvenile court judge had signed the Order adopting the master’s recommendation of dismissal. Notwithstanding the action taken by the Circuit Court, another judge conducted an exceptions hearing,3 sustained the State’s exceptions and ordered another adjudication on the petition. Appellant objected on the grounds of double jeopardy.

Thereafter, on September 7, the State called the case for a hearing on the appellant’s motion “to dismiss the case and in the alternative, to continu[e] the stay if [t]he request to dismiss is not granted.” Again the appellant argued that when the master entered a dismissal of the case, the juvenile was, in effect, acquitted of the charges and the case should have ended. The State’s position during the argument on the [630]*630motion to dismiss was that, “the State would stipulate that jeopardy attached, but its all, even at the exception level, its all the same proceeding.” According to the State, there was one continuous proceeding held in the Circuit Court as to Kevin E. After the master recommended a disposition of the case, a juvenile judge issued a final ruling adopting the master’s recommendation and another juvenile judge conducted the exceptions hearing. In denying appellant’s motion to dismiss, the judge concluded that the master had no authority to deny or grant a postponement and, in denying the State’s request for a continuance the master violated the court’s policy on postponements. Although the exceptions judge and the motions judge were the same individual, at both proceedings, the court failed to address either the significance or the status of the Circuit Court’s previous order, dated June 28, which order adopted the master’s findings and recommendations.

Subsequently, appellant appealed to the Court of Special Appeals based upon the motion judge’s ruling of September 7, which denied appellant’s motion to dismiss and ordered a new adjudicatory hearing. In addition, appellant requested a stay of proceedings in the juvenile court pending resolution of the appeal. The parties agreed that a stay pending resolution of the appeal was proper. Prior to any further proceedings in the intermediate appellate court, we granted certiorari, on our own motion. In re Kevin E., 399 Md. 592, 925 A.2d 632 (2007).

Discussion

The State moves to dismiss this appeal, pursuant to Md. Rule 8-602(a)(Z ),4 on the ground that it is not permitted by law. According to the State, the appeal is premature as it stems from a ruling on a postponement order which is not a final judgment or an immediately appealable order. The [631]*631State concedes that an appeal may be taken to prevent a second trial from occurring once jeopardy has attached. Before this Court, however, the State asserts that jeopardy did not attach because the prosecutor produced no evidence, and no competent tribunal entered deliberate findings of fact amounting to an acquittal.

Conversely, appellant contends that he does not “appeal from an order of the circuit court rejecting the master’s denial of a continuance.” To the contrary, appellant argues that he “has properly alleged that the proceeding below resulted in an acquittal for the purposes of double jeopardy.” Thus, according to appellant, the State seeks to disguise as a motion to dismiss its substantive contention that jeopardy never attached. We reject the State’s assertion that the appeal is premature and that jeopardy never attached or that there was no substantive acquittal. As we shall explain, the merits of appellant’s claim of double jeopardy are properly before us; therefore, the motion to dismiss is denied.

In the case at bar, the juvenile master’s recommendation to dismiss the petition on June 28, 2006, was approved by a juvenile court judge that same day. In our view, the judge’s order constituted a final order on the merits irrespective of any double jeopardy implications as to the charges against Kevin E. for violation of the controlled dangerous substance laws. The State was entitled to a hearing on the record as to the exceptions it filed and to supplement the record by additional evidence that the court determined was relevant and to which the parties raised no objection. Forster v. Hargadon, 398 Md. 298, 299-301, 920 A.2d 1049, 1049-52 (2007); Md. Rule 11-111(c)5 and Md.Code (1974, 2006 Repl. [632]*632Vol.), § 3-807(c)(3)6 of the Courts & Judicial Proceedings Article (“CJP”). In that regard, clearly, the juvenile court judge erred in adopting the master’s recommendation prior to the expiration of the five days mandated by Md. Rule 11-111 and CJP § 3-807(c). See In re Kaela C., 394 Md. 432, 906 A.2d 915 (2006) (holding that the Circuit Court erred in adopting the master’s recommendation and dismissing the CINA petitions). Notwithstanding the erroneous ruling, it is well settled in this jurisdiction that an acquittal, even when granted in error, constitutes an acquittal for double jeopardy purposes. Pugh v. State, 271 Md.

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Cite This Page — Counsel Stack

Bluebook (online)
938 A.2d 826, 402 Md. 624, 2008 Md. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kevin-e-md-2008.