LAWS PAGES

(Page 1 of 7)

U.S. Supreme Court
BENTON v. MARYLAND, 395 U.S. 784 (1969)

CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 201
Argued December 12, 1968
Reargued March 24, 1969
Decided June 23, 1969

 

Petitioner was tried in a Maryland state court for burglary and larceny. He was acquitted of larceny but convicted of burglary and sentenced to 10 years in prison. Because the grand and petit juries in petitioner's case had been selected under an invalid constitutional provision, the case was remanded to the trial court and petitioner was given, and exercised, the option of demanding re-indictment and retrial. Re-indicted for larceny and burglary, petitioner filed, on the ground of double jeopardy, a motion to dismiss the larceny count which the trial court denied. On retrial he was found guilty of both offenses, and concurrently sentenced to 15 years for burglary and 5 years for larceny. The appellate court ruled against petitioner on the double jeopardy issue and affirmed. Held:

  1. The concurrent sentence doctrine enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, does not constitute a jurisdictional bar to this Court's deciding petitioner's challenge to his larceny conviction, since the possibilities of adverse collateral effects to him from that conviction give the case an adversary cast and make it justiciable. Pp. 787-791.
  2. Regardless of whether the concurrent sentence doctrine survives as a rule of judicial convenience, the doctrine is inapplicable here since the Maryland appellate court decided not to apply the doctrine and upheld the larceny conviction despite petitioner's double jeopardy contention, and since the status of petitioner's burglary conviction is still in some doubt. Pp. 791-793.
  3. The double jeopardy prohibition of the Fifth Amendment, a fundamental ideal in our constitutional heritage, is enforceable against the States through the Fourteenth Amendment. Palko v. Connecticut, 302 U.S. 319, overruled. Pp. 793-796.
  4. Petitioner's larceny conviction cannot stand, since "[c]onditioning an appeal on one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy." Green v. United States, 355 U.S. 184, 193-194. Pp. 796-797. Page 785
  5. The question raised by petitioner that prejudicial error resulted from the admission at his trial for both burglary and larceny of some evidence that state law made inadmissible in a trial for burglary alone was not decided by the Maryland appellate court and should now be considered by that court. Pp. 797-798.

1 Md. App. 647, 232 A.2d 541, vacated and remanded.

M. Michael Cramer argued the cause for petitioner on the original argument and on the reargument. With him on the briefs were H. Thomas Sisk, Laurence Levitan, and Paul H. Weinstein.

Francis B. Burch, Attorney General of Maryland, argued the cause for respondent on the reargument. With him on the briefs was Edward F. Borgerding, First Assistant Attorney General. Mr. Borgerding argued the cause for respondent on the original argument. With him on the brief was Mr. Burch.

Peter L. Strauss argued the cause for the United States on the reargument as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Ronald L. Gainer.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

In August 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court of Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner's case was remanded to the trial court. Page 786 Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding re-indictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 15 years on the burglary count[fn1] and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. 1 Md. App. 647, 232 A.2d 541 (1967). The Court of Appeals denied discretionary review.

On the last day of last Term, we granted certiorari, 392 U.S. 925 (1968), but limited the writ to the consideration of two issues:

  1. Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment?
  2. If so, was the petitioner `twice put in jeopardy' in this case? Page 787

After oral argument, it became clear that the existence of a concurrent sentence on the burglary count might prevent the Court from reaching the double jeopardy issue, at least if we found that any error affected only petitioner's larceny conviction. Therefore, we scheduled the case for reargument, 393 U.S. 994 (1968), limited to the following additional question not included in the original writ:

"Does the `concurrent sentence doctrine,' enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2, Peyton v. Rowe, 391 U.S. 54, Carafas v. LaVallee, 391 U.S. 234, 237-238, and Sibron v. New York, 392 U.S. 40, 50-58?"

The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument.