Creighton v. State

ROSALYN B. BELL, Judge. Robert Thomas Creighton was convicted by a jury in the Circuit Court for Baltimore County of daytime housebreaking 1 and theft. He was sentenced to 25 years imprisonment as an habitual offender for the housebreaking offense under Md.Code Ann. Art. 27, § 643B(c) (1957, 1982 Repl.Vol., 1986 Cum.Supp.), and a concurrent 18-month term for the theft conviction. Both Creighton and the State appeal.

Creighton asks this Court to consider the following questions: “1. Is the evidence insufficient to sustain the convictions? “2. Did the State waive its right to seek a sentence of twenty-five years without the possibility of parole under Art. 27, § 643B(c)?” The State cross-appeals, contending that the trial court should have sentenced Creighton instead to life imprisonment without the possibility of parole under Md.Code Ann. Art. 27, § 643B(b) (1957, 1982 Repl.Vol., 1986 Cum.Supp.). We will consider the issues raised on the cross-appeal after we resolve the question of the sufficiency of the evidence.

Since Creighton’s second issue on appeal only becomes significant because of our holding on the State’s cross-appeal, we will consider his second challenge after our disposition of the cross-appeal. ¹²⁸ I. SUFFICIENCY OF EVIDENCE Creighton asserts that the evidence adduced at trial was insufficient to sustain his convictions for daytime housebreaking and theft. Specifically, he contends that the proof failed to establish his criminal agency. In reviewing this contention, we are guided by the Supreme Court’s mandate in Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979), wherein the Court set out the test for the sufficiency of evidence as follows: “[W]hether, 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.” (Emphasis in original.) See also Bloodsworth v. State, 307 Md. 164, 167 , 512 A.2d 1056 (1986). At trial, Carolyn Fickus testified that on June 10, 1985 she saw her next door neighbor, Curtis Harris, leave his house.

She stated that moments later she observed a man near the Harris house whose height, build and clothing reminded her of “somebody else” who “didn’t belong in our community ... [b]ecause he had done some B & E’s down there, and his prior record stated that he was not able to come back into our community.” She further related that she watched the man walk past the Harris residence and disappear from her view. After she heard Harris’s dog bark a few moments later, she walked over to Harris’s house but saw nothing unusual. Fickus recounted that shortly thereafter Harris began shouting that “somebody was in his house, call the police.” Fickus then telephoned the police and relayed Harris's description of the offender. She stated she later gave the police her own description of the man.

Fickus described the man as between 5'10"-6'0" in height and very thin. She also stated that he had short dark hair, but she could not see whether he had any facial hair. She described his attire as including dark, straight-leg pants, a “conductor’s cap,” black boots, a black T-shirt displaying a white circle with a red emblem, and a chain hanging out of his left back pants pocket. She could not ¹²⁹ identify Creighton at trial as the man she saw in her neighborhood.

Harris took the stand and stated that after he arrived home around 12:15 p.m. he walked into his kitchen, and a man “walked out of the bedroom behind me, and he said someone had broken in your house, and I came in to see—first I asked him, what are you doing here? He said, Someone broke in your house, and I came in to see what I could do.” When Harris went into the bedroom to see if any property was missing, the man ran out of the house. Harris stated he then shouted for Fickus and asked her to call the police. He gave her a description of the intruder to give to the police.

Harris described the man as approximately 6'0" tall, weighing 175-180 pounds, with dark brown hair, long sideburns, and a short “scrubby” beard. He stated the intruder was wearing a black shirt with white letters on it, blue jeans, and a bandanna tied around his head. He did not remember whether the man was wearing a cap. The property missing from Harris’s house included jewelry and about $40 in quarters.

Harris did not identify Creighton at trial. Alvin Nehus, a taxicab driver, identified Creighton at trial and testified that on June 10, 1985 he picked up Creighton a few blocks from Harris’s residence at approximately 12:55 p.m. and dropped him off at another location 10-12 minutes later. He stated Creighton paid his fare, $6.60, with $6.75 worth of quarters. Nehus recounted that after Creighton entered the cab, he asked if he could lie down because “several of his buddies ... was hunting for him to beat up on him____” According to Nehus, Creighton also told him that he wanted to lie down on the rear seat because he had been putting shingles on his grandfather’s roof and he was “a little bit overcome from heat____ He was feeling bad.” Nehus described Creighton as having a dark beard, whiskers and dark hair which at the time he picked him up appeared shorter than it was at trial.

He did not recall how Creighton was dressed the day of the incident. ¹³⁰ Officer James May testified that he received a call about a break-in at approximately 12:20 p.m. on June 10 and went to Harris’s residence. There he interviewed Harris and Fickus. He stated that both individuals gave the same description of the offender. After following several leads, Creighton was arrested and the officer recounted that he interviewed Creighton at which time Creighton denied being in the area of the Harris house.

Later in the interview, Creighton admitted being in the neighborhood and explained that “his girlfriend, Ruby Jacobs, had sent him down there in regards to some kind of a dope deal.” May recounted that during the interview Creighton also stated at different times that he had been in the area of the Harris residence to visit a friend or to do some roof work. Creighton denied to May that he took a taxi but after being advised that he had been identified by the cabdriver, he stated he had taken a taxi because his car had broken down. In explanation for how he paid the fare, May recalled Creighton stated that quarters were “what he had on him at the time.” Ruby Jacobs was called as a State’s witness and averred that she was having a relationship with Creighton at the time of this incident. She stated that on the morning of June 10, he was wearing “[a] pair of dark jeans and a brown leather hat.” She could not recall what shirt he was wearing and in response to inquiry, she also could not recall whether Creighton owned a black T-shirt with white lettering and a red emblem.

It was stipulated at trial that entry into the Harris residence was accomplished “by breaking ... a pane of glass in the rear kitchen door and unlocking this door.” It was also agreed on the record that the scene was processed by the crime laboratory, but no physical evidence or latent fingerprints were recovered. Viewing this evidence in the appropriate posture, we hold the proof was sufficient to sustain Creighton’s convictions. Circumstantial evidence can be sufficient to ¹³¹ support a conviction. Finke v. State, 56 Md.App. 450, 468 , 468 A.2d 353 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 , cert. denied, 469 U.S. 1043 , 105 S.Ct. 529 , 83 L.Ed.2d 416 (1984).

Presence near the scene of a crime “when coupled with other suspicious circumstances may be enough to base a conviction upon circumstantial evidence.” Yopps v. State, 234 Md. 216, 221 , 198 A.2d 264 , cert. denied, 379 U.S. 922 , 85 S.Ct. 279 , 13 L.Ed.2d 336 (1964). In the case sub judice, Creighton was identified at trial by Nehus, a witness who placed him near the crime scene. The descriptions offered by the neighbor, the homeowner, and Creighton’s girlfriend with respect to the offender’s clothing and appearance were very similar and were also similar to that offered by Nehus. In addition, Creighton lied to police several times about his presence in the area and behaved suspiciously in the taxicab.

He also paid for his ride in quarters. These facts combined presented sufficient proof for a rational trier of fact to conclude that Creighton had committed the offenses charged. Creighton relies on Craig v. State, 14 Md.App. 515 , 287 A.2d 330 (1972), and In re Appeal No. 504, Sept. Term, 1974, 24 Md.App. 715 , 332 A.2d 698 (1975), to support his conclusion that Fickus’s and Harris’s failure to identify him at trial mandates reversal. Both these cases were tried by the court rather than by a jury and are otherwise factually distinguishable.

In Craig , Craig and another boy were accused of breaking into the home of Mrs. Hines. The only evidence adduced to support Craig’s conviction was Hines’s observation of someone breaking glass and entering her hall. She came face-to-face with the intruder but could not describe his facial features and Hines could not identify Craig at trial. Craig and his companion were apprehended by a State Trooper approximately one-half mile from the scene of the breaking.

Judge Gilbert, now Chief Judge, speaking for this Court, ruled that the evidence was insufficient to sustain Craig’s conviction. As Creighton correctly points out, Judge Gilbert found fatal the fact that Hines failed to identify Craig as the intruder despite a face-to-face ¹³² opportunity to do so. Unlike the case sub judice, however, the description she allegedly gave to the State Trooper was at odds with her own description of the individual she saw in the hall. Similarly, In re Appeal No. 504 is of no assistance to Creighton.

In that case, this Court reversed a finding of juvenile delinquency. We held that while the juvenile was observed with a group of four other youths at the scene of a purse snatching and was apprehended near the scene, he was affirmatively identified by a witness as not being one of the youths who took the purse. We also found of salient import that the trial court erroneously took judicial notice that purse snatchings are usually done in concert. In Woodard v. State, 16 Md.App. 300 , 295 A.2d 789 (1972), also relied on by Creighton, the only evidence adduced at the jury trial was the defendant’s presence with five or six others in a store shortly before it was robbed and the fact that he denied to police his involvement but suggested to them that he did not want to take sole responsibility for the crime.

We held this was insufficient and reversed the conviction for armed robbery. In contrast to the facts in Craig, In re Appeal No. 504, and Woodard , in the case sub judice Creighton was identified by two different individuals as being in very close proximity to the crime scene. He acted suspiciously in the taxi. He paid for the cab ride in quarters.

He lied to the police about his whereabouts several times. The descriptions of the offender by the homeowner, the neighbor and the cab driver were all similar. All these circumstances, while individually not enough to sustain Creighton's convictions, were sufficient in concert to establish his agency.

II

LIFE SENTENCE Several weeks before trial, the State served on Creighton a notice advising him of its intention to seek a mandatory sentence as an habitual offender under § 643B(c). The notice stated that because Creighton had been convicted of ¹³³ two crimes of violence and had served one term of confinement, the State would seek a 25-year term with a limited possibility of parole. On the day of sentencing, the State filed and served on Creighton an amended notice which stated its intent to request a mandatory life sentence without the possibility of parole pursuant to § 643B(b) based on the same convictions set out in the first notice. 2 Creighton moved to dismiss the amended notice because the notice was not timely served under Rule 4-245(c). That motion was denied, but when it became apparent to the court that the parties needed additional time to brief a relevant legal issue, the court granted a 15-day postponement as provided under the Rule.

At sentencing, the State set forth the following proof: Case No. 59386—On February 24, 1978, Creighton plead guilty to robbery before the Circuit Court for Baltimore County. He was sentenced to the Department of Corrections for eight years, all but three years were suspended. Upon release Creighton was placed on supervised probation for five years. Creighton was released from the Baltimore County Detention Center on July 17, 1979.

Case No. 84-CR-3225—On October 23, 1984, Creighton plead guilty to daytime housebreaking 3 before the Circuit Court for Baltimore County. He was sentenced to the Department of Corrections for two years beginning on July 31, 1984. On January 31, 1985, the balance of the sentence was suspended and Creighton was placed on two years probation on the condition that he enter a drug rehabilitation program. On July 1, 1985, Creighton’s ¹³⁴ probation was revoked because he failed to attend the program and his original sentence of two years was reimposed.

(As of the date of sentencing in the instant case, Creighton was still serving this sentence.) Case No. 84-CR-3033—On October 23, 1984, Creighton plead guilty to daytime housebreaking 4 before the Circuit Court for Baltimore County. He was sentenced to the Department of Corrections for two years. This sentence was to be consecutive to the sentence imposed under 84-CR-3225. On January 31, 1985, the balance of the sentence was suspended and Creighton was placed on two years probation on the condition that he enter a drug rehabilitation program.

On July 1, 1985, Creighton’s probation was revoked because he failed to attend the program and his original sentence of two years to run consecutive to the sentence imposed in 84-CR-3225 was reimposed. Case No. 85-CR-3512—On December 3, 1985, Creighton was convicted of the instant offenses. In its cross-appeal, the State contends that the court erred in failing to sentence Creighton under § 643B(b) to a term of life imprisonment without the possibility of parole. When sentencing him to the lesser penalty of 25 years under § 643B(c), the court stated that because two of Creighton’s predicate convictions, Case Nos. 84-CR-3225 and 3033, arose from a single plea bargain, the “separate convictions” requirement under § 643B(b) was not satisfied.

Section 643B of the Code codifies Maryland’s habitual offender penalties. Subsection (b) sets out what has become known as the “four-time loser” provision: “(b) Mandatory life sentence.—Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being ¹³⁵ convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole. Regardless of any other law to the contrary, the provisions of this section are mandatory.” Subsection (c) sets out the lesser penalty for a “three-time loser”: “(c) Third conviction of crime of violence.—Any person who (1) has been convicted on two separate, occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years. Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, § 11.

A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the preceding occasion.” Maryland Courts have recognized the inconsistency between these two provisions and the “inartful” draftsmanship of the statute. Calhoun v. State, 46 Md.App. 478, 489-90 , 418 A.2d 1241 (1980), aff'd, 290 Md. 1 , 425 A.2d 1361 (1981); see Lett v. State, 51 Md.App. 668, 679-80 , 445 A.2d 1050 , cert. denied, 294 Md. 442 (1982). On one hand, for an habitual offender to receive a 25-year mandatory sentence under § 643B(c), the State must prove, inter alia, that the defendant has been convicted “on two separate occasions” of violent crimes arising from separate incidents. A “separate occasion” is defined as “one in which the second or succeeding offense is committed after there has been a charging document filed for a preceding occasion.” To this definition, in Garrett v. State, 59 Md.App. 97, 118 , 474 A.2d 931 , cert. denied, 300 Md. 483 , 479 A.2d 372 (1984), we added the requirement that “the two convictions serving as the predicate for the enhanced sentence must precede in ¹³⁶ time the commission of the offense upon which the instant conviction is based.” To qualify for the more severe penalty under § 643B(b), on the other hand, the State need only prove that the defendant has three separate convictions and has served three separate terms of confinement.

The separate occasion and separate incident language is absent from the mandatory life sentence section. Although Creighton wishes us to extend the language of § 643B(b) to reconcile the inconsistency between the enhanced sentence provisions, the State urges that the language of the section controls because it is plain and unambiguous. The State counsels us that if when construing the provision the plain language leads to an absurdity or is illogical, it is up to the Legislature to alter the statute. Recently in Blandon v. State, 304 Md. 316, 319, 321-22 , 498 A.2d 1195 (1985), and Hall v. State, 69 Md.App. 37, 60-61 , 516 A.2d 204 (1986), however, the Court of Appeals and this Court ruled that in interpreting § 643B, the various provisions must be read together and courts will not presume that the Legislature intended results that are illogical.

Moreover, courts “should reject a proposed statutory interpretation if its consequences are inconsistent with common sense.” Blandon, 304 Md. at 319 , 498 A.2d 1195 . We are also cognizant that “[i]n construing a penal statute and in resolving a dispute over the severity of the penalty, a presumption arises in favor of the lesser penalty over the greater one.” Calhoun, 46 Md.App. at 488 , 418 A.2d 1241 . With these principles in mind, we turn to the meaning of § 643B(b). Separate Convictions The first question presented is what does the word “separate” mean with respect to establishing three separate convictions for crimes of violence.

The State argues that since Creighton was convicted of three unrelated offenses, the plain language of the statute controls and the court erred in determining that convictions entered on the same ¹³⁷ date are not separate convictions under § 643B(b). Creighton responds that the term separate convictions should be defined by the “separate occasion” requirement found under § 643B(c), or in the alternative that a sequentiality element should be read into the statute. 5 Since we agree with the State, we consider each of Creighton’s interpretations. a. Separate Occasions Creighton posits that since the offense in 84-CR-3033 was committed on July 15, 1984 and the offense in 84-CR-3225 was committed on July 24, 1984, and since the charging documents were filed on August 27, 1984 and September 17, 1984, respectively, the separate occasion requirement under § 643B(c) has not been satisfied. Creighton suggests that if the separate occasion language found in § 643B(c) is inserted into § 643B(b), then the enhanced provisions will be consistent and the proof required for the lesser penalty will not be more stringent than that required for the greater penalty.

In support of his argument, Creighton notes that both the trial court and the State conceded at sentencing that the variance of proof between the two sections was most likely a legislative “oversight.” We are not convinced that the difference in proof was an oversight. We find it of controlling significance that in response to invitations in Calhoun, 46 Md.App. at 490, n. 5 , 418 A.2d 1241 , and Lett, 51 Md.App. at 680 , 445 A.2d 1050 , to rectify the inconsistency between the proof required under § 643B(b) and (c), the Legislature amended § 643B(c) by adding the separate occasion requirement. The General Assembly, however, left § 643B(b) unchanged. In Garrett, 59 Md.App. at 116-17 , 474 A.2d 931 ,