Claggett v. State

HOLLANDER, Judge. Appellant, Alfred Claggett, was convicted by a jury sitting in the Circuit Court for Calvert County of assault with intent to prevent lawful apprehension, in violation of Md.Ann.Code art. 27, § 386 (1992), and common law battery. On January 13, 1995, appellant was sentenced to concurrent ten-year terms of incarceration, with all but five years suspended. Appellant noted a timely appeal and asks the following questions of this Court: I. Did the trial court’s failure to instruct the jury that assault with intent to prevent lawful apprehension may be committed only against a police officer and not a private citizen constitute plain error?

II

Was the evidence sufficient to sustain appellant’s conviction for assault with intent to prevent lawful apprehension?

III

Did the trial court err in failing to merge appellant’s sentence for battery into his sentence for assault with intent to prevent lawful apprehension? FACTUAL SUMMARY At the relevant time, Stephen Davis and Robert Terry were co-owners of an IGA grocery store located in Calvert County. On March 21, 1994, at approximately 9:00 a.m., Mr. Davis straightened the bottles in the liquor display and counted the liquor. He recalled that there were four bottles of Jack Daniels on the shelf.

A short time later, a man entered the store and asked Mr. Davis for some boxes. Mr. Davis walked into a back room and retrieved several boxes. When he returned from the back room, Mr. Davis noticed a man, later identified as appellant, standing near the liquor counter with his back to Mr. Davis and his arms raised. Mr. Davis gave the boxes to the man who had requested them, walked over to ³⁸ the liquor counter, and saw that the four bottles of Jack Daniels were missing.

Mr. Davis testified that there were only two customers in the store that morning: the man to whom he had given the boxes and appellant. Appellant had previously made a purchase and was carrying an IGA shopping bag. Mr. Davis had not seen the man who had requested the boxes near the liquor counter. When Mr. Davis approached the cashier, the cashier informed him that she had not sold any liquor to appellant and that appellant had left the store.

Mr. Davis, who was not wearing anything that identified him as a store employee, ran outside. Appellant noticed him and ran to his car. Mr. Davis yelled to appellant to stop. As appellant reached his car, Mr. Davis grabbed the car door handle and attempted to prevent appellant from closing the door.

Mr. Terry, who had been in the store’s parking lot, came to Mr. Davis’s aid when he heard a “commotion” and heard Mr. Davis say something to the effect of “bring it back or give it back.” Mr. Terry also grabbed the car, but when appellant put the car in reverse and backed away from the men, both men released their grip. Appellant backed the car about fifty feet and then came forward. As Mr. Terry proceeded towards Mr. Davis, appellant drove towards Mr. Terry. According to Mr. Terry, when appellant drove forward, he “looked dead at me, turned the wheel towards me and tried to hit me with the car.” Appellant’s car “brushed” against Mr. Terry’s leg and knocked him to the ground.

Appellant then sped up and drove away. The police were called, and they located appellant through the car’s license plate number. The value of the liquor taken was $55.96. We shall include additional facts as necessary in our discussion of the questions presented. ³⁹ DISCUSSION I. Article 27, § 386 is captioned “Unlawful Shooting, Stabbing, Assaulting, etc., with Intent to Maim, Disfigure or Disable or to Prevent Lawful Apprehension.” The statute provides, in pertinent part, as follows: If any person shall unlawfully shoot at any person, or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained, every such offender ... shall be guilty of a felony....

When instructing the jury on the statutory offense of assault with intent to prevent lawful apprehension, the trial court stated: Another charge is the charge of assault on Robert Franklin Terry with the intent to prevent lawful apprehension. In that, the State must prove that the defendant struck the victim, that the defendant intended to prevent the lawful apprehension of the defendant, and that it was committed without justification or mitigation. Appellant contends, however, that the court failed to instruct the jury on an essential element of the crime, i.e., that a § 386 offense may be committed only against a police officer acting in the performance of his or her duties and not against a private citizen. In this regard, appellant draws an analogy to the common law offense of resisting arrest.

Appellant also claims that § 386 is ambiguous and, therefore, it must be construed in his favor. While appellant acknowledges that he failed to object to the court’s instruction, he asks this Court to hold that the trial court committed plain error. ⁴⁰ Plain error has been defined as “error which vitally affects a defendant’s right to a fair and impartial trial.” Richmond v. State, 330 Md. 223, 236 , 623 A.2d 630 (1993) (quoting State v. Daughton, 321 Md. 206, 211 , 582 A.2d 521 (1990)). “Under Maryland Rule 4-325(e), we possess plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court.” Danna v. State, 91 Md.App. 443, 450 , 605 A.2d 150 , cert. denied, 327 Md. 627 , 612 A.2d 257 (1992). But, “[w]e have limited the instances in which an appellate court should take cognizance of unobjected to error to those which are ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.’ ” Richmond, 330 Md. at 236 , 623 A.2d 630 (quoting State v. Hutchinson, 287 Md. 198, 203 , 411 A.2d 1035 (1980)). In deciding whether to exercise our discretion, this Court may consider the egregiousness of the error, the impact on the defendant, the degree of lawyerly diligence or dereliction, and whether the case could serve as a vehicle to illuminate the law.

Austin v. State, 90 Md.App. 254, 268-72 , 600 A.2d 1142 (1992). Nevertheless, “[t]be touchstone remains, as it always has been, ultimate and unfettered discretion.” Id., 90 Md.App. at 268 , 600 A.2d 1142 . See also, Stockton v. State, 107 Md.App. 395 , 668 A.2d 936 (1995). Here, we hold that the trial court committed no error, plain or otherwise, in instructing the jury on the offense of assault with intent to prevent lawful apprehension.

We explain. We begin with a review of the principles of statutory construction. The cardinal rule of statutory interpretation “is to ascertain and effectuate the legislative intent.” Jones v. State, 336 Md. 255, 260 , 647 A.2d 1204 (1994). See also Motor Vehicle Admin. v. Gaddy, 335 Md. 342, 346 , 643 A.2d 442 (1994); Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994); Comptroller of the Treasury v. Jameson, 332 Md. 723, 732 , 633 A.2d 93 (1993).

The primary source for ascertaining that intent is the statutory language itself. In re Douglas P., 333 Md. 387, 392 , 635 A.2d 427 (1994). The starting point in statutory interpretation is with an examination of the language of the statute. If the words of ⁴¹ the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.

Jones, 336 Md. at 261 , 647 A.2d 1204 . Thus, “[w]hen the words of the statute are clear and unambiguous, we need not go further.” State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731 (1993) . Moreover, “courts must read all parts of a statute together, with a view toward harmonizing the various parts and avoiding both inconsistencies and senseless results that could not reasonably have been intended by the Legislature.” Barr v. State, 101 Md.App. 681, 687 , 647 A.2d 1293 (1994). See also Parrison v. State, 335 Md. 554, 559 , 644 A.2d 537 (1994) .

In applying these principles here, it is apparent that the plain language of § 386 is directed at aggravated assaults against “any person.” The statutory language does not require that the assault must be committed against a police officer in the performance of his or her duties. Imposing the requirement that the assault occur against a police officer acting in the performance of his or her duties would expand the statute to add a requirement that is not there. This we decline to do. See Amalgamated Casualty Insurance Co. v. Helms, 239 Md. 529, 534-35 , 212 A.2d 311 (1965) (“To supply omissions [in a statute] transcends the judicial function.”); Gregg v. Gregg, 199 Md. 662, 668 , 87 A.2d 581 (1952).

What the Court said in Fikar v. Montgomery County, 333 Md. 430 , 635 A.2d 977 (1994), is pertinent here: [W]here statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view towards making the statute express an intention which is different from its plain meaning. Id., 333 Md. at 434-435, 635 A.2d 977 (internal quotations omitted). The case of Claybrooks v. State, 36 Md.App. 295 , 374 A.2d 365 , cert. denied, 281 Md. 735 (1977), supports our view that ⁴² the offense may be committed against an ordinary citizen. There, a private citizen attempted to detain two individuals who had robbed a bank.

In the ensuing struggle, the citizen was hit across the back and head with a gun barrel. Id., 36 Md.App. at 302-03 , 374 A.2d 365 . The indictment in that ease charged one of the robbers with assault with intent to maim, disfigure, and disable but did not allege that the assault occurred with the intent to prevent lawful apprehension. Id., 36 Md.App. at 304 , 374 A.2d 365 .

This Court, in reversing the conviction for the avoiding apprehension offense, stated, in relevant part: [T]here was ... ample evidence to entitle the jury to find that there was an assault with intent to prevent legal apprehension. The indictment, however, as we have stated, did not aver that offense, and an accused may not be found guilty of an offense not charged. Had the charge been properly laid, we would have no hesitancy in affirming the conviction. Inasmuch as the offense charged was not proven, and the proven offense was not charged, we shall reverse that conviction.

Id. at 314 , 374 A.2d 365 . Additionally, appellant’s analogy to the offense of resisting arrest is flawed. Resisting arrest is a common law offense that ordinarily requires “resistance to a lawful arrest made by an officer in the performance of his official duties.” Busch v. State, 289 Md. 669, 674-75 , 426 A.2d 954 (1981). (Emphasis added).

That offense, as defined, is committed when a police officer, in the performance of his or her duties, is arresting the defendant. Conversely, the offense of assault with intent to prevent lawful apprehension provides that it is unlawful to “assault or beat any person.” (Emphasis added). There is simply no requirement that the assault occur in connection with an arrest, rather than a detention, or that it be committed against a police officer. Moreover, there are instances when private persons may lawfully apprehend or detain an individual.

Giant Food, Inc. v. Mitchell, 334 Md. 633, 643 , 640 A.2d 1134 (1994) (“ ‘Any property owner, including a storekeeper, has a ... privilege to detain against his will any ⁴³ person he believes has tortiously taken his property.’ ”) (quoting Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 656 , 261 A.2d 731 (1970)); Stevenson v. State, 287 Md. 504, 512-13 , 413 A.2d 1340 (1980).

II

Appellant next contends that the evidence was insufficient to sustain his conviction for assault with intent to prevent lawful apprehension. Appellant claims that, because Mr. Terry did not have authority to arrest him, Stevenson, 287 Md. at 513 , 413 A.2d 1340 , the apprehension was not lawful. Accordingly, appellant argues that he could not assault Mr. Terry with the intent to prevent lawful apprehension. Initially, we note that at the end of the State’s case, defense counsel made a motion for judgment of acquittal as to each count, but presented argument only on the counts alleging assault with intent to maim and assault with intent to murder.

At the close of all the evidence, defense counsel stated only, “I renew my motion for judgement [sic], Your Honor.” As counsel failed to particularize any deficiency in the State’s evidence regarding the charge of assault with intent to prevent lawful apprehension, appellant has not properly preserved this question for our review. Md. Rule 4-324(a); State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986) (defendant must “state with particularity all reasons why his motion for judgment of acquittal should be granted”); Brooks v. State, 68 Md.App. 604, 611 , 515 A.2d 225 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987) (“a motion which merely asserts that the evidence is insufficient to support a conviction, without specifying the deficiency, does not comply with [Rule 4-324] and thus does not preserve the issue of sufficiency for appellate review”). Although the issue is not preserved, we will address the issue for further guidance of counsel and the court. We conclude that the evidence was legally sufficient to sustain the conviction. ⁴⁴ In Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643 , 261 A.2d 731 (1970), the Court of Appeals addressed a situation in which a shopkeeper, believing that a customer had shoplifted some merchandise, deprived the customer of his liberty.

The Court set forth the law regarding arrests by private persons: Whatever technical distinction there may be between an ‘arrest’ and a ‘detention’ the test whether legal justification existed in a particular case has been judged by the principles applicable to the law of arrest. A shopkeeper under these principles has only the rights of a private person. In Maryland a private person has authority to arrest without a warrant only when a) there is a felony being committed in his presence or when a felony has in fact been committed whether or not in his presence, and the arrester has reasonable ground[s] (probable cause) to believe the person he arrests has committed it; or b) a misdemeanor is being committed in the presence or view of the arrester which amounts to a breach of the peace. Id. at 655 , 261 A.2d 731 .

See also, Stevenson, 287 Md. at 512-13 , 413 A.2d 1340 . Furthermore, even when a private person observes the offense of shoplifting, the private person generally does not possess the authority to arrest the shoplifter, because shoplifting often involves inexpensive items, so that the offense would amount to a misdemeanor. Paul, 256 Md. at 655-56 , 261 A.2d 731 . In Paul , the Court of Appeals recognized one narrow exception to the general rule governing arrests by private persons: Any property owner, including a storekeeper, has a common law privilege to detain against his will any person he believes has tortiously taken his property.

This privilege can be exercised only to prevent theft or to recapture property, and does not extend to detention for the purpose' of punishment. This common law right is exercised at the shopkeeper’s peril, however, and if the person detained does ⁴⁵ not unlawfully have any of the arrester's property in his possession, the arrester is liable for false imprisonment. Id. at 656 , 261 A.2d 731 . Based on Paul , coupled with Mr. Terry’s belief that appellant had taken his property, Mr. Terry had a common law right to apprehend appellant, even if was only for a period of time sufficient either to prevent the theft or recapture his property.

Accordingly, the evidence was sufficient to sustain appellant’s conviction for assault with intent to prevent lawful apprehension.

III

Appellant complains that his sentence for common law battery should have merged into his sentence for the statutory offense of assault with intent to prevent lawful apprehension, because the single act of striking Mr. Terry with the car formed the basis for both the battery and the assault charges. In support of his claim, appellant relies on three theories: 1) the required evidence test, embodied in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); 2) the rule of lenity; and 3) fundamental fairness. We agree, based on all three grounds, that appellant’s sentence for battery should have merged with his sentence for assault with intent to prevent lawful apprehension. A. The authorities are legion in support of the well settled rule that, under Maryland common law, the question of whether one criminal offense merges into another, or whether one offense is a lesser included offense of another, is usually resolved by the “required evidence test.” 1 Williams v. State, 323 Md. 312, 316 , 593 A.2d 671 (1991) and cases cited therein.

Moreover, the required evidence test applies to both common ⁴⁶ law offenses and statutory offenses. Id., 323 Md. at 317 , 593 A.2d 671 ; Snowden v. State, 321