Beard v. State

Wilner, J., delivered the opinion of the Court. Appellant was caught in a Beartrap; and, as a result, he was convicted by a jury in the Circuit Court for Baltimore County ²⁷⁸ of two counts of assault, two counts of robbery, and two counts of conspiracy to receive stolen goods. He was sentenced to prison for 15 years for each assault conviction, 10 years for each robbery conviction, and 10 years for each conspiracy conviction, all of these sentences to be served concurrently. In this appeal, he raises the following four issues: 1.

Did the trial court err in not merging the assault convictions into the robbery convictions? 2. Was the evidence sufficient to sustain appellant’s conviction of conspiracy to receive stolen goods? 3. Did the trial judge err in permitting appellant to make his own closing argument without first determining that appellant had knowingly and intelligently waived his right to counsel? 4. Did the trial judge err in not sua sponte taking action to correct prosecutorial misconduct?

Beartrap was an undercover fencing operation run jointly by the F.B.I. and the State and County police departments. It operated in the Lansdowne section of Baltimore County under the name of Exports Limited. Its purpose was to purchase stolen goods, identify, if possible, the receivers and the thieves, return the property to its rightful owners, and apprehend and prosecute the criminals. It has, under various covers, become in recent years a popular and effective law enforcement technique.

Through the testimony of State Troopers Voltaggio and Capelli and F.B.I. Agent Cherigo, it was established that, at 10:42 a.m. on May 13, 1977, one James Williams entered Exports Limited and offered for sale a large quantity of merchandise consisting of television sets, stereo equipment, fur and leather coats, and various men’s and women’s suits. A deal was struck, he was paid $1,000 for all that he had, and he left. Agent Cherigo, looking through some sort of “peephole”, saw Williams leave and engage in a conversation with appellant, who was outside in a car. About four minutes later, Williams, this time joined by appellant, reentered the ²⁷⁹ “store”.

According to Voltaggio, appellant complained about the price paid for the merchandise: “He stated he could get more money for his merchandise on the street than bringing it to our place.” Nevertheless, Voltaggio remained firm, and appellant and Williams ultimately left with just the $1,000. During this conversation, appellant described the fur coats that were part of the loot purchased. This entire transaction — the original one with Williams and the subsequent conversation with Williams and appellant — was recorded on videotape. That tape was entered into evidence and played for the jury.

It apparently corroborated in full the testimony of the police officers. Williams and appellant were described as black males, Williams being taller than appellant. Both Trooper Voltaggio and Agent Cherigo identified appellant in court as the person who had accompanied Williams the second time. Voltaggio said that appellant had been in twice before, both times with Williams, and had previously offered goods for sale.

Appellant was wearing white pants on this current occasion. Charles and Shirley Smith then testified that at about 8:45 or 9:00 a.m. on that same day — May 13, 1977 — Charles answered a knock at his front door. As he opened the door, two black males burst in, one of them holding a pistol to his head. One was tall, the other shorter; the short one had a stocking mask over his head.

Mrs. Smith noted that both men were wearing white overalls. The two men tied the Smiths, put a pillowcase over Mr. Smith’s head, ransacked the house, and took from it cash, jewelry, fur and leather coats, suits, a color television set, and a stereo amplifier. The combined testimony of the police officers and the Smiths established that the property purchased by Beartrap an hour or two after this robbery was, in fact, that belonging to the Smiths and taken from them in the robbery. With this background, we may proceed to consider the issues raised by appellant, adding such additional facts as may be necessary as we go along. ²⁸⁰ (1) Merger of Assault and Robbery Convictions The evidence showed rather clearly that the assaults committed upon Mr. and Mrs. Smith, charged under counts 8 and 9 of the indictment, were part and in furtherance of the robberies on those two victims charged in counts 13 and 14 of the indictment.

There was no evidence of any independent assault on either Mr. or Mrs. Smith. Thus, the State quite properly concedes that the convictions under counts 8 and 9 must be merged into those under counts 13 and 14. Newton v. State, 280 Md. 260 (1977); Brooks v. State, 284 Md. 416 (1979); Powell v. State, 1 Md. App. 495 (1967). Accordingly, the convictions (and sentences imposed thereon) under counts 8 and 9 will be reversed.

(2) Sufficiency of Evidence of Conspiracy to Receive Stolen Goods Counts 5 and 6 of the indictment charged appellant and Williams with conspiring with each other and with other persons unknown to receive the goods taken from Mr. and Mrs. Smith, knowing the same to have been stolen. Appellant claims that the evidence was not sufficient to warrant his conviction on those counts. To put this issue in a proper context, we start with the proposition that appellant could not have been convicted of both the robbery and the substantive crime of having received the goods taken in the robbery, for the same reason that precludes the conviction of both a larceny and receiving the goods stolen in the larceny: “in law a thief cannot be guilty of the crime of receiving stolen goods which he himself has stolen, and a guilty receiver of stolen goods cannot himself be the thief, and hence the defendant could not be guilty on both counts.” Heinze v. State, 184 Md. 613, 617 (1945). See also Bell v. State, 220 Md. 75 (1959); Hardesty v. State, 223 Md. 559, 562 (1960); Fletcher v. State, 231 Md. 190 (1963); Osborne v. State, 4 Md. App. 57 (1968); Hinton v. State, 36 Md. App. 52 (1977).

This is not because of any doctrine of merger, but quite the opposite. The two crimes are deemed to be inconsistent. ²⁸¹ The reason for this derives from the very nature of the crime of receiving. It arose initially from the common law misdemeanors of misprision of felony and compounding of felony (see Jackson v. State, 10 Md. App. 337 (1970)), and has carried forth at least two aspects of those antecedent offenses. One aspect is the sequential nature of the crime: it requires as a prerequisite a completed larceny.

Until the larceny is complete, there are no stolen goods, known to be stolen and able to be received. Second, it has always envisioned the receiver as being someone other than the actual thief. This was evident from the root crimes: a person could not be convicted of misprision of felony or compounding a felony on the basis that he failed to prosecute himself for the underlying felony. The criminal act was the failure to prosecute someone else.

Thus, as was said by the Florida court fifty years ago in Bargesser v. State, 116 So. 12 (Fla., 1928), “One cannot receive goods from himself. A theft must be perfected before the offense of receiving stolen property ... can be perpetrated, and the receiver of the stolen goods must be a person other than the principal in the larceny.” 1 ²⁸² At least as early as 1822, however, the Court of Appeals recognized that a'conspiracy to do any act that is itself criminal is an indictable offense at common law, quite apart from the substantive crime that is the object of the conspiracy. See The State vs. Buchanan et al., 5 H.&J. 317, 351 (Dec. Term, 1821). A concise explanation of the relationship between the conspiracy and its criminal object, fully supported by the decisions of the Court of Appeals and of this Court, was given by the Supreme Court in Iannelli v. United States, 420 U. S. 770 (1975).

At pages 777-78, the Court stated (with citations omitted): “Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act----Unlike some crimes that arise in a single transaction ... the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act.... Thus, it is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end____Indeed, the Court has even held that the conspiracy can be punished more harshly than the accomplishment of its purpose____ [2] “The consistent rationale of this long line of decisions rests on the very nature of the crime of conspiracy. This Court repeatedly has recognized that a conspiracy poses distinct dangers quite apart from those of the substantive offense.” See, in terms of the Maryland decisions, Garland v. State, 112 Md. 83 (1910); Jones v. State, 8 Md. App. 370 (1969).

Upon this rationale — that a conspiracy to commit any crime is itself a separate criminal offense — it would seem ²⁸³ clear that conspiracy to receive stolen goods is not only an independent indictable offense, but that, upon sufficient evidence, a person may be convicted of both the conspiracy and the substantive receiving offense. There are few, if any, appellate decisions addressing this particular question, but the result would seem to follow from the underlying general principles. See United States v. Anderson, 552 F. 2d 1296 (8th Cir. 1977) where, in a footnote on page 1300, the Court concluded, presumably in the context of 18 U.S.C. §§ 371 and 659, that “[conspiracy to receive and possess stolen goods and possession of those goods cannot be deemed ‘inconsistent offenses’ under any theory.” Nor, based upon Jones v. State, supra, would two such convictions merge. The question then is posed: assuming that conspiracy to receive stolen goods is a crime independent of the substantive offense of receiving such goods, under the circumstances of this ease, may appellant be convicted of the conspiracy when, because the goods to be received were those actually stolen by appellant, he could not have been convicted of the substantive receiving offense?

In other words, given the particular facts of this case, can a person be convicted of both the robbery of the goods and conspiracy to receive the same goods? If he cannot receive goods from himself, can he conspire to receive goods from himself? We have carefully framed these questions around the facts in this case — where the conspiracy charged relates only to the goods taken in the robbery and appellant was an active participant in that robbery. We are not concerned with the situation in which the receiver or conspirator to receive is a mere aider or abettor in the robbery (see Osborne v. State, supra, 4 Md. App. 57 at 60 ; State v. Bundy, 372 P. 2d 329 (Ariz., 1962)), or with the case of a continuing conspiracy to receive stolen goods only part of which emanate from a larceny carried out by the conspirators (compare People v. Lohman, 6 C.A.3d 760, 767-68 (Cal., 1970), cert. den. 400 U. S. 995 (1971)), or where, although the evidence would indicate that the conspirator was an active participant in the larceny, he was not actually convicted of the theft (see United States v. Anderson, supra, 552 F. 2d at 1300 ; Hinton v. State, 36 Md. App. 52 (1977)). ²⁸⁴ Counts 5 and 6 of this indictment, read in conjunction with the robbery counts (13 and 14), charge appellant and Williams with conspiracy to receive the very goods that they alone stole from the Smiths — and only those goods.

The evidence, and the inferences fairly deducible from it, may well suffice to establish a more general conspiracy to receive stolen goods — this coming from the fact that appellant and Williams had dealt with Beartrap on earlier occasions — but the convictions could rest only upon what was charged in the indictment; and that, as noted, concerned only what was taken in this one double robbery. Except to establish identity, therefore, or for some other collateral purpose, the other transactions between these co-defendants and Beartrap would be entirely irrelevant in terms of describing the particular conspiracy charged here. The only evidence of the conspiracy charged in the indictment was the actual “fencing” of the goods by Williams within an hour or so after the robbery, the subsequent conversation between him and appellant, and the prompt return of the two to complain about the price paid. There was no evidence that the conspiracy antedated the robbery or that it was independently formed after the robbery.

It established only the successful attempt to dispose, as quickly as possible, of the loot the two had just stolen. In light of the limited scope of the charge and the evidence adduced to support it, the conspiracy convictions in this case suffer from what, in tennis terms, would be called a double fault. We