Allen v. State

ALPERT, Judge. This appeal involves a murder-for-hire scheme that resulted in one conviction but, fortunately, no deaths. We shall affirm. Procedure below The grand jury for Allegheny County indicted Dr. William Reed Allen, Jr., appellant, on two counts of common law solicitation to commit murder.

Count one charged Allen, a dentist, with soliciting an undercover police officer to kill a Deputy State’s Attorney; count two charged Allen with soliciting the undercover police officer to kill a City of Cumberland Police Officer. Judge Gary G. Leasure of the ⁷⁰⁸ Circuit Court for Allegheny County, acting in response to appellant’s motion for removal, ordered that Allen’s case be removed to the Circuit Court for Baltimore County. In a written opinion, Judge Leasure concluded that the totality of the circumstances indicated that the impartiality of jurors in his jurisdiction would be affected by pre-trial matters. 1 Thereafter, on March 12 through 15, 1991, Judge Joseph F. Murphy, Jr. of the Circuit Court for Baltimore County presided over appellant’s jury trial. After deliberating, the jury found Allen guilty on count one and not guilty on count two.

Allen moved for a new trial; Judge Murphy denied the motion and sentenced him to twenty-five years’ imprisonment, ten years suspended in favor of five years’ probation. In this appeal, Allen asks us to answer a number of questions. 1. Did the trial court err in denying the Defendant’s Motion for Judgment of Acquittal? A. Does conviction and punishment for Solicitation violate Article 5 of the Maryland Declaration of Rights?

B. Does the use of Solicitation as a Common Law crime violate the 8th and 14th Amendments to the United States Constitution and Articles 8 and 17 of the Maryland Declaration of Rights? C. If Solicitation exists in Maryland, does it exist as anything other than a species of attempt? D. Was the evidence sufficient to show that the defendant was the solicitor or was he merely a solicitee who acquiesced to the state agent’s solicitations? ⁷⁰⁹ E. Was the alleged Solicitation too vague and indefinite to support a conviction? F. If a Solicitation occurred, did it occur at a time prior to the times charged in the indictment?

G. Should the indictment have been dismissed for duplicity? 2. Were the court’s instructions erroneous? A. Did the Court err in charging the elements of the crime? B. Did the Court err in adding “predisposition” in its instructions on solicitation?

C. Did the Court err in failing to instruct with regard to the state witness’ prior criminal record, status as an accomplice, as an informer and as a drug abuser? D. Did the Court err in failing to instruct with regard to a law enforcement witness? Appellant ran afoul of the law, apparently quite by accident. On the evening of September 9, 1988, Officer Shawn Grove of the City of Cumberland Police Department, along with his partner, Officer David Hartman, responded to a complaint regarding a burglar alarm at 820 Windsor Road (Cumberland, Maryland).

Observing an open rear door at the residence, Grove entered in search of intruders. Once inside, he saw what he believed to be marijuana. He notified the Narcotics Task Force (NTF), which responded to the scene. In addition, Grove applied for (as co-affiant) and received a warrant to search and seize items in 820 Windsor Road.

Barry Levine, Deputy State’s Attorney for Allegheny County, accompanied the NTF as it executed the warrant. Appellant, along with a female companion, arrived at 820 Windsor Road as the officers executed the warrant. Upon learning that Allen resided at the premises, the officers arrested and charged him with drug related offenses. Prior to the chance encounter that evening, neither Grove nor Levine had occasion to know appellant. ⁷¹⁰ Levine, who, at that time, was primarily responsible for drug prosecutions in Allegheny County, represented the State in the prosecutions against Allen.

Levine presented the State’s position at a suppression hearing at which Grove served as a witness. Subsequently, Levine was present when appellant pled guilty to the charges against him. The court sentenced Allen to eighteen months’ imprisonment, seventeen months suspended (supervised probation for three years, including drug testing), and one month of work release with Friends Aware, Inc. (FAI), a non-profit organization for mentally and physically disabled persons. 2 Levine was on hand when the court handed down appellant’s sentence. Appellant, while working at FAI, met Larry Edwin West-wood.

FAI employed Westwood from April to October of 1990. Allen and Westwood worked on projects together and gradually built up a rapport with each other. Eventually, Allen told Westwood how he felt about his drug prosecution. Westwood related the conversation to the jury.

Q: [MR. MONACO FOR THE STATE] Did he [Allen] tell you anything about his arrest and/or conviction on the drug charge? A: Yes, he did. Q: What did he tell you?

A: He told me that he thought he had been set up and he wasn’t happy with being made an example of by the media and by the judicial system in Allegheny County. Q: When he would discuss either his arrest, his conviction, or his sentence, would he ever mention any specific individuals, would [he] identify names? A: Yeah. Q: What?

A: Shawn Grove, the officer that allegedly set him up. ⁷¹¹ Q: Did he tell you that? A: Yes. Barry Levine prosecuted him to make an example out of him, just to set an example. Westwood, in turn, shared the details of his tainted record with appellant.

Q: Mr. Westwood, we have discussed your military record 3 and your criminal background. 4 Did you ever tell William Allen about those things? A: Yes, I did. Q: At what point in this sequence of events did you make him aware of those facts. A: At the Department of Motor Vehicles when we were discussing his conviction.

Q: Approximately how long was this after you had met him? Did the military and criminal information come out at different times or was it pretty much the same time? A: Basically it had come out at the same time. We were just exchanging life histories, I guess you would call it.

Q: What else did you tell him about yourself? A: That I was rowdy. Q: Anything else? A: You know, just — I don’t know how to say it.

Just my general nature. Q: Well, did you use specific words? What exactly did you tell him? A: About drinking and going into bars and terrorizing bars.

You know, things like that. Things of that nature. ⁷¹² Levine occasionally saw Allen around Cumberland, which Levine described as a small town. Aside from noticing appellant outside of the courtroom, Levine next encountered appellant when Allen came before the court to face a violation of probation charge. Levine had filed an amendment to the violation of probation petition originally filed by appellant’s probation officer Laurie Meredith.

The court found that Allen had violated his probation. 5 Levine noticed that Westwood attended the hearing. Prior to that hearing, Levine had never seen Westwood. 6 Westwood testified that appellant’s distaste for the criminal justice system transformed into a machination after the court found appellant violated his probation. Q: Mr. Westwood, did Mr. Allen and you ever discuss doing anything specific or anything specifically about Shawn Grove and Barry Levine? A: Yes, there was such a conversation.

Q: When did that topic of conversation first occur? A: It occurred after the conviction [sic] for the probation violation. THE COURT: So, your recollection is this conversation took place the first time the Defendant reported for service after his conviction [sic] for violation of probation? THE WITNESS: Right.

Q: What was the content of those conversations? What did you say and what did he say? A: He said he wanted to kill. ⁷¹³ Q: Who? A: Barry Levine and Shawn Grove.

Q: What did you say? A: At first I was shocked as to why. Then he had continued to pursue the conversation with wanting to know if I could obtain dynamite. I told him that I could obtain dynamite.

He said he wanted some dynamite to send a package to Mr. Barry Levine because of his pursuit of Billy Allen as an individual. You see, he felt that he was being singled out and it was just going to be one legal hassle after another because they had it out for him, they wanted him. Q: Did he ever discuss Shawn Grove? A: Yes, he did.

Q: What did he say? A: He wanted Shawn Grove killed, too. Q: Did you and he have a conversation about killing Shawn Grove and Barry Levine just once? A: Oh, no.

This was after his conviction [sic] on the probation violation. This was a continual conversation with us. After his conviction [sic] for the probation violation, that’s when we started to communicate more; two or three times a week. He would call me at my house or I would call him at his house____ Q: When was the first time that you remember the word kill or murder, something equivalent being used by either you or him in this period of time?

A: Right after his conviction [sic] for the probation violation. Q: Who used it first? Who brought it up? A: He did.

Q: You didn’t bring it up? A: What the hell — why should I bring it up. I don’t have nothing against them. I’m not the ones [sic] that had been convicted. ⁷¹⁴ Appellant informed others of his dissatisfaction with Grove and Levine.

Allen’s one-time girlfriend, Kerry Susan Murray, testified that she could not remember the specifics of any conversations with Allen about Grove or Levine, but she knew that Allen did not care for Grove. Christina W. Duffus, appellant’s former dental hygienist, stated that appellant felt his arrest was a “set-up.” Pamela Shope, who served as Allen’s dental hygienist and office manager, testified that Allen told her, on numerous occasions, that he felt he had been “set-up.” The only name Allen mentioned, according to Shope, was Grove’s. Erin Michelle Shanahan, who tended bar at Colonial Manor L’Ostaeria, remembered that appellant conveyed to her the idea, using other words which she could not recall, that he had gotten a “raw deal.” Two of Allen’s co-workers at FAI testified at his trial. James R. Shaffer, a market representative, told the jury that Allen used the word “hit man” when discussing people (unnamed) he did not like.

Q: What did Mr. Allen say at that time, Mr. Shaffer? A: He said that there were a lot of people in Cumberland that he didn’t like. A comment was made to the effect that you just can’t get rid of them, they will always be here. He said maybe what I need is a hit man to get rid of them and he laughed.

It was in jest. That’s how I took it, as in jest. Q: Did you have any response to that comment, Mr. Shaffer? A: Taking it as a joke, I just said, well, Bill, you can probably go anywhere in Baltimore and find a crackhead [drug addict] for $500.00 for that, and I just laughed about it.

Q: At that point you thought he was joking? A: Yes. Peter Ziler, instructor and job coach with FAI Industries, reinforced Shaffer’s testimony. ⁷¹⁵ Q: And do you recall what, if anything, the Defendant stated during that conversation? A: Well, the statement wasn’t made directly to me, it was made to Mr. Shaffer.

I only caught parts of it. What I heard was the statement do you know where I could get a hit man. When I looked, Mr. Allen was smiling. Well, Mr. Shaffer responded, hell, Bill, you can pick one up on the street corner in Baltimore, smiling, because we thought he was joking.

Westwood’s opinion of Allen’s comments directly clashes with those of Shaffer and Ziler. A: I thought at first he was just talking to talk, but it went beyond that at a point that he was dead serious. I mean, he took me around to Shawn Grove’s house. Q: Did he ever do anything that made you believe he was serious or, as you say, dead serious?

A: Oh, yeah. Q: What did he do? A: He had their timetables down as to when they left their homes, where they lived, the time they went for walks, what time they went back. Q: You refer to they.

Who are you referring to? A: Barry Levine and Shawn Grove. Q: How do you know he had that information? A: He took me there.

Westwood told the jury that Allen asked him to kill Grove and Levine. Q: Mr. Westwood, you have indicated that you and the Defendant discussed killing these two people. A: Right. Q: And the Defendant brought it up first.

A: Yes. Q: Did he ever ask you to kill these people? A: Yes, he did. Q: What was your response? ⁷¹⁶ A: I didn’t really give him a response.

I didn’t say yes; I didn’t say no. Eventually, Westwood told Allen that Westwood had a friend who would kill Grove and Levine. Q: What exactly did you tell him? Did you mention any specifics?

A: That I had a friend that would kill them. Q: Did you ever tell him that you could arrange to supply any of the materials involved in this? A: The dynamite, yeah. Q: Did you ever mention any specific names to him?

A: Yes, sir, I did. Q: What was that name? A: Michael Keogh. 7 Word on the “street” was that Westwood had contracted to kill Grove and Levine. A: Because the word was on the street that I was contracted to kill Barry Levine and Shawn Grove.

I had knew [sic] at this point in time that if I didn’t kill Shawn Grove and Barry Levine someone else was going to be killed or someone else was going to kill them and I was going to take the fall. So, I was more or less covering my own behind there. I thought this thing had gone far enough. In an act of preemptive self-preservation, Westwood contacted Sergeant Chester Miller of the Maryland State Police.

Westwood informed Miller that Westwood would trade information if Miller would revoke or terminate West-wood’s probation. Apparently, the State’s Attorney agreed to terminate Westwood’s probation; however, in actuality, it was only changed from supervised to unsupervised. ⁷¹⁷ Miller contacted Newcomer of the Maryland State Police. Newcomer handled, primarily, solicitation for murder cases. Assuming the alias, “Michael Keogh,” Newcomer prepared himself to meet Allen.

Meanwhile, Westwood called Allen and left a message on Allen’s answering machine; Allen did not respond. The second try at personal conversation with appellant was successful. Westwood informed him that “Keogh” was with Westwood, and that they were waiting for appellant at the Comfort Inn in Frostburg. Allen attempted to postpone the meeting, but eventually agreed to meet the pair in twenty minutes.

Newcomer, posing as “Keogh,” met with Allen and West-wood three times: September 11,1990, (twice); and September 21, 1990. The State, using the room next door for surveillance, recorded (audio and visual) the meetings. 8 The second meeting on the 11th was not videotaped because Allen came back to the room before the surveillance team had time to set up another video tape. We shall provide the relevant facts relating to these three meetings in our discussion infra, issue 1. D. The police arrested Allen some time after the third conference. 1.

A. In a kernel, appellant’s first argument is that solicitation was not recognized as a common law crime prior to 1801 by the English courts, 9 and, therefore, his conviction violates Maryland Declaration of Rights article V. That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such ⁷¹⁸ of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State. And the Inhabitants of Maryland are also entitled to all property derived to them from, or under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore. See State v. Canova, 278 Md. 483, 486 , 365 A.2d 988 (1976) (“The inhabitants of Maryland are constitutionally entitled to the common law of England.”). We have the authority to determine whether parts of the common law apply to the present situation.

Moxley v. Acker, 294 Md. 47, 51 , 447 A.2d 857 (1982) (“It is clear that it is proper for the judiciary to determine what part of the body of English court decisions and statutes are applicable to our situation today.”); see Ireland v. State, 310 Md. 328 , 529 A.2d 365 (1987). According to Chief Judge Chase, State v. Buchanan, 5 H & J 317, 362 (1821) (Chase, C.J., separate op.): The common law of England is derived from immemorial usage and custom, originating from acts of parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the courts of justice of England.

Appellant’s contention only requires us to engage in academic dialogue; for Maryland courts explicitly recognize the common law crime of solicitation to commit mur ⁷¹⁹ der. Lewis v. State, 285 Md. 705, 722-23 , 404 A.2d 1073 (1979); Meyer v. State, 47 Md.App. 679, 688-89 , 425 A.2d 664 , cert. denied, 290 Md. 718 , cert. denied, 454 U.S. 865 , 102 S.Ct. 327 , 70 L.Ed.2d 166 (1981). Two sentences in Cherry v. State, 18 Md.App. 252, 257-58 , 306 A.2d 634 (1973), have, in Allen’s opinion, opened the door to attack his conviction. Judge Moylan, writing for this court, examined the common law crime of solicitation and its subsequent embrace by American jurisprudence.

Its [solicitation’s] first formulation, as something distinct from a mere aspect in the law of attempts, was in Rex v. Higgins, in 1801, 2 East 5, 102 Eng.Rep. 269. As persuasively declarative of pre-existing common law, Rex v. Higgins was followed by landmark decisions in State v. Avery, 7 Conn. 266 , 18 Am.Dec. 105 (1828), and Commonwealth v. Flagg, 135 Mass. 545 (1883). Without a doubt, Rex v. Higgins, 102 Eng.Rep. 269 (1801), is the leading English common law case on solicitation. Clark & Marshall, A Treatise on the Law of Crimes § 4.02 at 219 (7th ed. 1967); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 648 (3d ed. 1982).

In Rex v. Higgins, 102 Eng.Rep. 269 (1801), the court affirmed appellant’s conviction for soliciting a servant to steal the servant’s master’s goods. The indictment charged that appellant “did falsely, wickedly, and unlawfully solicit and incite one James Dixon ... to take, embezzle, and steal a quantity of twist ... of the goods and chattels of his masters J. Phillips, &c____” The first of appellant’s three assignments of error was that “the said count [upon which appellant was convicted] does not set forth any misdemeanor or offence [sic] which the justices of peace at their Quarter Sessions had jurisdiction to determine.” In Higgins, appellant’s counsel, Mr. Topping, represented to the court that, except for cases of bribery, forgery, and perjury, [i]n none of the books is there any case or precedent to be found of an indictment for a bare solicitation to commit an offence without an act done in pursuance of it____ ⁷²⁰ Lord Kenyon, Chief Justice, was decidedly of a different opinion. Citing an opinion by Lord Mansfield, Rex v. Vaughan, 98 Eng.Rep. 308 (1768), Lord Kenyon declared: It was a solicitation to the duke to commit a great offence against his duty to the King and the public. So it is here: and it would be a slander upon the law to suppose that an offence of such magnitude is not indictable.

I am also clearly of [the] opinion, that it is indictable at the Quarter Sessions, as falling in with that class of offences, which, being violations of the law of the land, have a tendency, as it is said, to a breach of the peace, and are therefore cognizable by that jurisdiction. Justice Grose prefaced his opinion by st ig, “This is a very grievous offence, and it is most important to the public to be made known as such.” He found three cases, Rex v. Vaughan, 98 Eng.Rep. 308 (1768); Rex v. Plympton, 92 Eng.Rep. 397 (1737); and Rex v. Johnson, 89 Eng.Rep. 753 (1678), instructive in deciding the case sub judice. Relying on those cases, Justice Grose concluded that “inciting another to commit a misdemeanor is itself a misdemeanor: a fortiori therefore it must be such to incite another to commit felony.” Justice Lawrence found the doctrine Lord Mansfield laid down in Rex v. Scofield, Cald.Mag.Cas. 397 (1784), 10 directly on point. The doctrine laid down by Lord Mansfield in R. v. Scofield, which comprises all the principles of the former decisions, entirely governs the present case; that so long as an act rests in bare intention, it is not punishable by our laws; but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if accompanied with an unlawful ⁷²¹ and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.

Lastly, Justice Le Blanc delivered his opinion, in which he distinguished two of appellant’s cases, Regina v. Callingwood, 92 Eng.Rep. 239 (1694-1732), and Regina v. Daniell, 87 Eng.Rep. 856 (1704). He'stated: A solicitation or inciting of another, by whatever means it is attempted, is an act done; and that such an act done with a criminal intent is punishable by indictment has been clearly established by the several cases referred to____ And it appears to me that this is an offence tending to a breach of the peace, and is therefore indictable before that jurisdiction. Justice Le Blanc reasoned that Daniell supported the proposition that persuading another to steal might be indictable. As to Callingwood, he believed that an action on the case did not lie there because the injury was private.

In sum, the court assumed that solicitation was an indictable offense if the object of the solicitation tended to breach the peace (public offense). 11 Members of the court recognized prior cases to support their opinions. For example, Lord Kenyon characterized Vaughan as a solicitation case and Justice Grose’s opinion assumed that inciting someone to commit a misdemeanor is a misdemeanor. In Rex v. Johnson, 89 Eng.Rep. 753 (1678), the court upheld an attorney’s conviction for soliciting another to testify falsely. 12 Twenty-six years later, in Regina v. Dan ⁷²² iell, 87 Eng.Rep. 856 (1704), the court held that the inciting of an apprentice or servant to leave his master is not a public offense, but inciting an apprentice or servant to steal his master’s goods is an indictable offense. 13 Perkins and Boyce note that the opinion does not state whether the incitement would be indictable if the servant refused the proposition. Perkins & Boyce, supra, 486 n. 7.

Regina v. Collingwood, 87 Eng.Rep. 1029 (1704), followed in the same year. In that case, the court held that an action for inciting an apprentice to embezzle his master’s goods could not be maintained unless there is evidence that the apprentice took the goods. In Rex v. Plympton, 92 Eng.Rep. 397 (1737), the court affirmed appellant’s conviction for promising to pay William Hewitt to vote in an election. In Rex v. Vaughan, 98 Eng.Rep. 308 (1769), appellant was convicted for trying to bribe the Duke of Grafton into selling a position of the office of the clerk of the Supreme Court of Jamaica.

Vaughan’s counsel argued that the case was controlled by statute 14 and that the act charged could not have been punishable at common law. They stated: Therefore if the act had been done, and the proposal carried into execution, it would not have been punishable at common law. Much less then, can the mere solicitation to do it be so; no act being done, in consequence of it. There is one case of a solicitation to commit perjury, none being actually committed; in ...

Rex v. Johnson, an attorney. But this is a single case, and very imperfectly reported. Messrs. Dunning, Wallace, and Ranby, for the prosecution, took the opposite position.

To solicit and counsel the committing of a crime, is criminal. As to the case of Rex v. Johnson, ... it shews ⁷²³ that the charge was considered as an offence; though the Judges differed about the measure of the punishment. As to what has been urged about this solicitation not being criminal, because there was no act done in consequence of it — the case of Rex v. Plympton, ... is in point: for, that does not appear to be a promise accepted, or the money paid. This very exception, “that the promise was no crime, without shewing the fact done,” was taken and over-ruled.

Lord Mansfield, in Vaughan, reasoned that: Wherever it is a crime to take, it is a crime to give: they are reciprocal. And in many cases, especially in bribery at elections to Parliament, the attempt is a crime: it is complete on his side who offers it. If a party offers a bribe to a Judge, meaning to corrupt him in a case depending before him; and the Judge taketh it not; yet this is an offence punishable by law, in the party that offers it____ So also a promise of money to a corporator, to vote for a mayor of a corporation; as in Rex v. Plympton. And so also must be an offer to bribe a Privy Counsellor, to advise the King.

(Footnote omitted.) Therefore it appears to me that this is a misdemeanor. In 1702, the court considered a procedural issue raised by the defendant Darby. Regina v. Darby, 87 Eng.Rep. 1121 (1702). The information against Darby charged him with soliciting a witness to testify consistent with that witness’ prior testimony, and soliciting a second witness to swear to a particular thing.

On the second point, Holt, Chief Justice, stated: But as to the other point, it seemed to be a common-law offence, to offer money to swear to a particular thing whether true or false. (Footnote omitted.) In Mr. Bacon’s Case, 83 Eng.Rep. 341 (1660-1697), the defendant was indicted for intending to murder the Master of the Rolls, and for offering money to another to commit the act. Allegedly, the defendant told the other person that ⁷²⁴ if that person would not commit the act, the defendant would do it himself. The defendant was convicted, and subsequently appealed the decision.

On appeal, he argued that the intent to commit a felony is not indictable. The court affirmed, and stated: [A]nciently the will was reputed or taken for the deed, in matters of felony; and tho’ it is not so now, yet it is an offence and finable____ The opinion is not clear as to what part the solicitation of another played in defendant’s conviction. Hicks’s Case, 80 Eng.Rep. 362 (1612), also decided in the seventeenth century, touched upon the provocation of another to act. The debate in Hicks’s revolved around a letter containing taunts which the defendant sent to Sir Baptist Hicks.

The Star Chamber found no libel due to want of publication, but the Star Chamber, nevertheless, fined the defendant, sentenced him to “wear papers,” and ordered him to “make his submission to Sir Baptist Hicks” because his action “is a provocation to a challenge, and breach of the peace.” Professors LaFave and Scott concisely summarize the pre-Higgins cases. LaFave & Scott, supra, § 6.1(a) at 3-4 (footnotes omitted). Whether the offense of solicitation was known to the common law before the nineteenth century is uncertain. In one early case it was held that a man could not be indicted for simply requesting a servant to leave his master’s service, 15 although the opinion states that inciting a servant to embezzle his master’s goods would be indictable.

Shortly thereafter, however, it was held in another case that no offense was charged where it was not alleged that the servant actually took the goods. 16 Only two special types of solicitation were clearly indictable under the early cases: solicitation to commit a for ⁷²⁵ gery to be used in trial or perjury; 17 and the offering of a bribe to a public official. 18 (Original footnotes omitted.) The cases discussed support Judge Moylan’s statement that Higgins is “persuasively declarative of pre-existing common law____” Cherry, 18 Md.App. at 258 , 306 A.2d 634 . The pre-Higgins cases suggest that solicitation was punishable at common law prior to 1776. Specifically, solicitation to commit forgery and perjury were the only two special types of solicitation indictable at common law. LaFave & Scott, supra, § 6.1(a) at 4.

In addition, pre-1776 dictum indicates that inciting a servant to steal his master’s goods was indictable. See Regina v. Daniell, 87 Eng.Rep. 856 (1704). Thus, the opening appellant “perceives” in Cherry , in our opinion, is truly illusory. 1. B. Our resolution of the first issue against appellant’s position makes discussion of his second issue unnecessary. 1.

C. Appellant implores us to reverse his conviction because, he contends, solicitation is a species of attempt. He cites Lamb v. State, 67 Md. 524 , 10 A. 208 (1887), for the proposition that solicitation is a species of attempt. Allen’s reading of Lamb is erroneous. In Lamb , the Court of Appeals reversed John C. Lamb’s conviction for soliciting a pregnant woman to take certain drugs which would induce an abortion.

The Court equated solicitation with attempt when it considered whether the object of a solicitation can be a misdemeanor. Lamb, 67 Md. at 533-34 , 10 A. 208 . But the acts charged upon the traverser in the second count are not comprehended in the terms of the statute. The charge is that the traverser solicited a pregnant ⁷²⁶ woman to take certain drugs for the purpose of causing an abortion.

It is not stated that she took the drugs. The act is germane to those prohibited by the statute. It is an effort by solicitation to cause means to be used .for a guilty purpose. It may be urged that a solicitation is an attempt, and that an attempt to commit a misdemeanor is a misdemeanor.

Pursuing the same train of inference and reasoning, we may go a step further, and maintain that as the solicitation is a misdemeanor, an attempt at solicitation would, by the same rule be a misdemeanor. This process might be indefinitely extended, so as to reach persons very remotely separated from the act which the statute intended to punish. The Court concluded that the Legislature did not intend to punish Lamb for his actions and that the common law did not proscribe his actions either. The Court, however, recognized a difference between attempts and solicitations of felonies.

Lamb, 67 Md. at 534 , 10 A. 208 (emphasis added). It has frequently been stated that an attempt to commit a misdemeanor, is, by the common law, a misdemeanor. There are undoubtedly many instances in which this is true. But it cannot be maintained as a universal principle.

The law has declared that an attempt to commit a felony, or a persuasion of another person to commit a felony, is a misdemeanor. Lamb stands for the proposition suggested by the State: “Lamb ... simply rejected the notion that, in Maryland, the object of a solicitation can be a misdemeanor.” Cherry v. State, 18 Md.App. 252, 259 , 306 A.2d 634 (1973); see Clark & Marshall, A Treatise on the Law of Crimes § 4.04 at 224-26 & n. 78 (7th ed. 1967) (citing Lamb). Furthermore, in this century, we have affirmed convictions for common law solicitation to commit murder. Meyer v. State, 47 Md.App. 679, 688-89 , 425 A.2d 664 , cert. denied, 290 Md. 718 , cert. denied, 454 U.S. 865 , 102 S.Ct. 327 , 70 L.Ed.2d 166 (1981).

Therefore, we reject appellant’s argument. ⁷²⁷ 1. D. Allen failed to renew his motion for judgment of acquittal after he presented evidence in his behalf. See Md.Ann.Code Article 27, § 593; Md.Rule 4-324. His actions have withdrawn the motion from our review.

Warfield v. State, 315 Md. 474, 487 , 554 A.2d 1238 (1989) (“When a defendant offers evidence on his own behalf after his motion for acquittal is denied, the motion is withdrawn and not subject to review.”). Procedural defect aside, Allen’s claim is meritless. 19 On review, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979), quoted in McMillian v. State, 325 Md. 272, 289-90 , 600 A.2d 430 (1992). At trial, the State played two video tapes and one 20 audio tape for the jury, in which Allen, Westwood, and Newcomer discuss killing Grove and Levine. Newcomer told the jury that appellant had not made a decision during either the first or second meeting of September 11, 1990 to have Levine or Grove killed. 21 Q [MR.

BERNSTEIN FOR ALLEN]: ... Trooper, Dr. Allen left at the end of this brief audiotape [second meeting on September 11], did he not? A: Yes, sir. ⁷²⁸ Q: And at that time when he left there was no decision reached, was there? He was to give you the decision the next time after you met again after you scoped [studied] things out.

Is that a fair statement? A: Yes, sir. Q: So, there was no agreement for a murder when Dr. Allen left on September 11th. There was only an agreement to scope things out [study the victims]?

A: (Nodding in the affirmative.) Q: You have to answer orally, sir[.] A: Yes, sir. Appellant, did, however, inform Newcomer of appellant’s predicament. The transcript from the first meeting makes that obvious. 165 NEWCOMER Lay the whole thing out for me. Tell me what’s happening so I can get a picture of what’s going on — he’s (gesturing toward Westwood) given me, but he was drinking when he was telling me, so I want it from you straight. 178 ALLEN Well I’ve just got a district attorney who’s really got a hard-on for me, you know.

He set me up, they’ve done a lot of illegal things against me, and I need the problem eliminated one way or another and Larry came up with a few ideas and suggested maybe you could help or whatever. Allen came to the hotel room expecting to meet a hit man; Newcomer played the part well. He told appellant that he did not want to use dynamite in the killings. Newcomer was referring to the discussions between Westwood and Allen about using dynamite to kill or maim Levine and Grove.

Shortly thereafter, appellant vacillated when Newcomer asked appellant how he proposed to eliminate his “problems.” 256 NEWCOMER How do you propose to do that? 257 ALLEN (looking toward Westwood) I don’t really have any proposals. ⁷²⁹ Newcomer directly asked Allen if he wanted a “job” done. Appellant responded by asking how much Newcomer charged “for something like this?” Newcomer quoted prices to appellant and asked him if they were agreeable. Appellant answered, “Yeah, I think so.” Thereafter, appellant and Newcomer discussed the logistics of studying the intended victims. Appellant supplied Newcomer