Dabney v. State

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned). The Baltimore County Police Department, after an obviously carefully prepared post-midnight surveillance of the appellant from the far northwestern corner of Baltimore County to its far southeastern corner—a surveillance involving six or seven unmarked police cars, a police helicopter, and the use of a highly sophisticated thermal imaging tracking device—ended up charging the appellant with attempted fourth-degree burglary. Attempted fourth-degree burglary? It smacks of convicting A1 Capone, after Elliot Ness had been on his trail for a decade, of income tax evasion.

It is perfectly legal, of course, but there remains the lingering aftertaste of overkill. The appellant, Franklin Roosevelt Dabney, was convicted by a Baltimore County jury of attempted burglary in the fourth degree. In this appeal, he raises the three contentions ²²⁸ 1. that he was convicted of a non-existent crime, to wit, an attempt to commit an attempt; 2. that the evidence was not legally sufficient to support the conviction; and 3. that the trial judge committed plain error in instructing the jury on the subject of a criminal attempt. We need make no more than a passing observation or two about the second and third contentions.

With respect to the appellant’s invitation to us to invoke the “plain error” exemption from the preservation requirement, the appellant has given us no glimmer of a reason as to why we would wish to set a criminal free on a non-preserved technicality when we do not have to do it. Even if, arguendo, an error occurred that contributed to the appellant’s conviction (we are not suggesting that it did), there is no due process problem for, when an objection is unpreserved, no process is due. As to how an appellate court might choose to react when a possible error is, by random chance, left unpreserved, we are not unsympathetic to Chief Justice Joseph Weintraub of New Jersey in State v. McKnight, 52 N.J. 35 , 243 A.2d 240, 250 (1968), when he observed: The Constitution is not at all offended when a guilty man stubs his toe. On the contrary, it is decent to hope that he will.

See Ciriago v. State, 57 Md.App. 563, 576 , 471 A.2d 320 (1984). And see Morris v. State, 153 Md.App. 480, 506-24 , 837 A.2d 248 (2003); Perry v. State, 150 Md.App. 403, 434-40 , 822 A.2d 434 (2002); Jeffries v. State, 113 Md.App. 322, 325-26 , 688 A.2d 16 (1997); Austin v. State, 90 Md.App. 254, 257-59, 260-72 , 600 A.2d 1142 (1992). As to evidentiary sufficiency, the evidence was overwhelming that the appellant, on the early morning of January 20, 2003, in a residential area of White Marsh, was up to no good—of one sort or another. That much was certain.

From the abundant indications of ominous, albeit undifferentiated, skulduggery, moreover, there could arguably arise, inter alia, the permitted inference that he was out to steal something. ²²⁹ The evidence was marginal, but it was probably enough if we were to assume a cognizable offense. In the last analysis, however, it is unnecessary to address these two contentions formally because of our ultimate agreement with the appellant’s first contention. An Improbable Odyssey At approximately midnight on the evening of January 19-20, 2003, the appellant left his apartment in northwestern Baltimore County, got into his black Infiniti, and drove out of his neighborhood. For reasons unexplained to us in this record, a police surveillance team, consisting of six or seven unmarked police cars, was on station, waiting to monitor the appellant’s every move.

They monitored him as he stopped at a service station and purchased gasoline. As the appellant then approached the Reisterstown Road entrance to the Baltimore Beltway (1-695) and turned east on it toward Towson, a police helicopter joined the surveillance. Detective Jeffrey Collins observed that the appellant’s driving was “normal” while on the Baltimore Beltway. Detective Steven Inge observed that the appellant was driving “very slow.” On his way around the Beltway, the appellant first took the Dulaney Valley Road exit and detoured through a residential neighborhood just off Dulaney Valley Road.

Apparently finding nothing to his liking, he returned to the Beltway and, still attended by his police escort, resumed his journey east and south. Without a single traffic infraction, the appellant followed the Beltway to the southeastern corner of the county, where he left the Beltway and proceeded into a residential neighborhood in White Marsh. As the appellant entered the residential area, the police cruisers dropped off from close surveillance and set up a perimeter blockade around the neighborhood. The helicopter, however, continued the surveillance from an altitude of 3,000 feet.

Officer Patrick Connolly, of the Police Department’s Aviation Section, conducted that surveillance with a thermal imaging camcorder, a device that registers and records the ²³⁰ heat emitted from persons or objects in order to trace their movements. When viewed through the thermal imaging camcorder, persons or objects that emit heat will appear white, whereas objects that do not emit heat will appear as black or gray. The appellant’s car, for instance, appeared as white because of the heat emitted by its motor. Using the thermal imaging camcorder, Officer Connolly described the appellant’s behavior once inside the residential neighborhood: “[He] just did a lot of driving around all of these little side streets.” Using a map, Officer Connolly narrated for the jury the route of the appellant’s vehicle. “It came in Deviation, up Ballygar, drove around.

Here’s Santa Rita. It did a lot of just driving around in this area. It came down Santa Rita to Ballygar, back around, went up Kilbride. He turned around, came back down Kilbride, turned onto Ballygar.

And he parked, approximately, right here.” Officer Connolly observed the appellant park his car on Ballygar Road, around the corner from the home of Vendel and Patricia Ann Katona, who lived on the perpendicular Kilbride Road. When the appellant alighted from his vehicle, he walked up Ballygar Road to its intersection with Kilbride. He turned right on Kilbride and walked to the Katona home, which is the second house in from the intersection. Mr. and Mrs. Katona did not know the appellant, had neither met him nor heard of him, and did not give him permission to enter onto their property.

The light was on in the Katona living room. Mrs. Katona was still up, reading and watching television, although Mr. Katona had gone to bed at around 11:30. Two cars were parked in the Katonas’ front driveway. Officer Connolly, from the helicopter, observed the appellant walk up that driveway, pause for about ten seconds between the two parked cars, walk back down the driveway to the street, and then cross the lawn to the front porch of the house.

After standing on the porch for a short time, the appellant walked around the side of the house and then to the rear of the house. ²³¹ At that point, Detective Molly Gardner, in one of the unmarked surveillance vehicles, drove slowly down Kilbride Road and stopped almost in the front of the Katonas’ home. The appellant, apparently “alerting” to the vehicle, ran behind the Katona home, behind the neighboring home, and back to his car on Ballygar Road. Officer Connolly described in detail the appellant’s movements from the time he left his car until the time he returned to it. He exited the vehicle, came up onto the sidewalk here, walked down the sidewalk toward Kilbride Road, made a right-hand turn on Kilbride, came down Kilbride.

There’s a house here on the corner. It was the second house that was actually facing Kilbride, this one right here (indicating). He walks down the sidewalk, goes right down the driveway of this house, spends maybe 10 seconds or so just standing next to the vehicles here in the driveway; then goes between the vehicles, walks back around, comes out to the sidewalk, actually steps out into the street here on Kilbride. Then, he cuts right down across the front lawn of the house and goes up on the porch of the house.

He was there for several seconds. We see him come down off the porch, walk down around the side of the house, come down along the side of the house and almost go to the rear of the house right here. He then comes back around from the rear of the house and he’s coming up along the side of the house. Then, a car comes down the street, pulls up and stops, approximately, in front of the house that he was at.

He then runs down behind the house, runs down behind the neighbor’s house here, goes down here to the house at the corner and is hiding behind the house here at the corner. He stays here, approximately, maybe 20 seconds or so. Then, he runs straight from this house back to his car. And then from our vantage point, there’s like a big row of trees or bushes here.

We see him from this house, going toward his car. Approximately, five seconds or so goes by, and then we see the vehicle leave. We see this vehicle drive out from behind the tree line here and drive down the road. ²³² The appellant drove immediately away from the White Marsh neighborhood. He was not stopped by the police.

Indeed, he was not arrested until a month later, at which time he was charged with, inter alia, attempted fourth degree burglary. The thermal imaging tape was played for the jury. The appellant did not testify. The odyssey was never explained.

A Dubious Charge The appellant was not convicted of a consummated fourth-degree burglary, but only of an attempted fourth-degree burglary. “Ay, there’s the rub.” Of the various forms of criminal behavior covered by the umbrella crime of fourth-degree burglary, the attempted sub-variety for which the appellant was primarily, if not exclusively, tried was a type of criminal behavior that had earlier been one of the two ways in which an accused could be found guilty of being a rogue and vagabond. Maryland Code, Criminal Law Article, § 6-205(c) provides, in pertinent part: A person, with the intent to commit theft, may not be in or on ... a yard, garden, or other area belonging to the dwelling ... of another. Assuming for the moment the sufficiency of the evidence to support a reasonable inference of “the intent to commit theft,” the appellant in this case was clearly guilty of a consummated fourth-degree burglary of that particular subvariety and not of a mere attempt. As the case was ready to go to the jury, the prosecutor was aware of a looming problem as he addressed the court.

We have to address the verdict sheet, because it’s not attempted burglary in the fourth degree, it’s burglary in the fourth degree—he was on that property with the intent to steal. (Emphasis supplied). The court reminded the prosecutor of the obvious and prominent impediment to correcting the verdict sheet. The appellant had never been charged with a consummated fourth-degree burglary and consequently could not be convicted of it. ²³³ The verdict sheet, in a word, could not be corrected.

The prosecutor responded, “the State’s argument regarding that would be that he attempted to have an intent to commit a theft,” whatever that may mean. There may be a subtlety there beyond our comprehension, but we have no idea what it may be. The court subsequently instructed the jury on the law of attempt and on fourth-degree burglary of the rogue and vagabond subvariety. The jury returned a verdict of guilty of attempted fourth-degree burglary.

The problem is not that proof of consummation would not also support a conviction for the attempt, because the attempted crime is, as a matter of logical necessity, a lesser included crime within the consummated crime. Some attempts fail and others succeed, but they are attempts in either event. The attempt simply lacks one element possessed by the consummated crime, and it has no independent element of its own. Lightfoot v. State, 278 Md. 231 , 360 A.2d 426 (1976).

The problem is that an attempt to commit this particular predicate crime (a fourth-degree burglary of the rogue and vagabond subvariety) may carry in its genes a different but innate impediment all of its own, and thereon hangs the tale that follows. The Common Law Misdemeanor of Attempt In assessing the compatibility of a marriage between 1) an inchoate attempt and 2) the predicate crime attempted, the necessary analysis, by definition, is doubled. In Lane v. State, 348 Md. 272, 284 , 703 A.2d 180 (1997), Judge Wilner referred to how the nature of the symbiotic relationship changes with the varying characteristics of the predicate crime attempted: [Ajttempt “is an adjunct crime; it cannot exist by itself, but only in connection with another crime;” and it thus “expands and contracts and is redefined commensurately with the substantive offense.” We will look first at the common law misdemeanor of attempt itself. In Gray v. State, 43 Md.App. 238, 239 , 403 A.2d 853 (1979), this Court traced the early development of the common law misdemeanor. ²³⁴ The notion that an attempt to commit a crime—any crime, felony or misdemeanor, statutory or common law, preexisting or of later origin—is itself a crime came relatively late into Anglo-American jurisprudence.

It had its origins in the Court of Star Chamber, during Tudor and early Stuart times.[1] Its crystallization into its present form, however, is generally traced to the case of Rex v. Scofield, Cald. 397, in 1784. The court held in Rex v. Scofield, “The intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality.” The doctrine was locked into its modern mold by 1801 with the case of Rex v. Higgins, 2 East 5. Relying on Scofield, the court in Higgins confirmed a conviction, saying, “All offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable.” In the wake of Scofield and Higgins, it was clear that an attempt to commit any felony or misdemeanor, of common law origin or created by statute, was itself a misdemeanor. We turned then to the firm implantation of attempt law into the soil of Maryland.

It is, furthermore, clear that the common law misdemean- or of criminal attempt, notwithstanding its post-Revolutionary final crystallization, has always been recognized as part of the common law of Maryland. Hochheimer, Crimes and Criminal Procedure (2nd Ed. 1904), p. 297-298; Franczkowski v. State, 239 Md. 126, 127 , 210 A.2d 504 (1965); Wiley v. State, 237 Md. 560, 563-564 , 207 A.2d 478 (1965); Lightfoot v. State, 278 Md. 231 , 360 A.2d 426 (1976); Lightfoot v. State, 25 Md.App. 148 , 334 A.2d 152 (1975); Fisher v. State, 1 Md.App. 505 , 231 A.2d 720 (1967). 43 Md.App. at 239-40 , 403 A.2d 853 . From the beginning, it has been indisputably established that the common law misdemeanor consists of two ²³⁵ elements: 1) the mens rea of intending to commit a particular crime and 2) the actus reus of taking a substantial step, beyond mere preparation, toward the commission of the targeted crime. In Grill v. State, 337 Md. 91, 94 , 651 A.2d 856 (1995), Chief Judge Murphy spoke for the Court of Appeals: A person is guilty of a criminal attempt when, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention is accomplished.

See also Lane v. State, 348 Md. 272, 284 , 703 A.2d 180 (1997); State v. Earp, 319 Md. 156, 162-63 , 571 A.2d 1227 (1990); Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988); Cox v. State, 311 Md. 326, 329-31 , 534 A.2d 1333 (1988). Burglary in the Fourth Degree Before turning to the symbiosis in this case between the venerable common law misdemeanor of attempt and the far younger statutory misdemeanor of burglary in the fourth degree, it behooves us to lay the newer and less familiar specimen out on the table for at least a cursory examination. Fourth-degree burglary is an umbrella statute, embracing no less than four subvarieties of now criminal behavior. Herd v. State, 125 Md.App. 77, 83 , 724 A.2d 693 (1999).

What is true of some of those subvarieties, moreover, is not true of others. The first two, for instance, are mere general intent crimes, whereas the latter two are specific intent crimes. The first two are recent statutory inventions, whereas the latter two were already venerable at the time of Blackstone and Hale. It is a miscellaneous collection, with its common denominator or organizing principle being that the various offenses share, if nothing else, the same level of appropriate punishment of being “subject to imprisonment not exceeding 3 years.” § 6-205(e).

Although recodified in 2002 as Criminal Law Article, § 6-205, the crime of burglary in the fourth degree (by that formal name at least) was first made a part of the criminal law of Maryland by Chapter 712, § 2, of the Acts of 1994 and was ²³⁶ initially codified as Article 27, § 32. 1 In its current form, Criminal Law Article, § 6-205 lists four subvarieties of prohibited behavior. (a) Prohibited—Breaking and entering dwelling.—A person may not break and enter the dwelling of another. (b) Same—Breaking and entering storehouse.—A person may not break and enter the storehouse of another. (c) Same—Being in or on dwelling, storehouse, or envi rons.—A person, with the intent to commit theft, may not be in or on: (1) the dwelling or storehouse of another; or (2) a yard, garden, or other area belonging to the dwelling or storehouse of another.

(d) Same—Possession of burglar’s tool.—A person may not possess a burglar’s tool with the intent to use or allow the use of the burglar’s tool in the commission of a violation of this subtitle. The four crimes grouped under the umbrella of fourth-degree burglary neatly divide into two sets of two crimes each. The first set, subvarieties (a) and (b), focus on the actus reus of breaking and entering a dwelling or a storehouse, with only the minimal mens rea of a general intent. 2 By contrast, subvarieties (c) and (d) are far less ²³⁷ demanding as to the actus reus. They do not require the breaking and entering of a structure.

They do demand, however, the enhanced mens rea of a specific intent, either “to commit theft” under (c) or to commit “any violation of this subheading” under (d). A. The Breaking and Entering Statutes Subvarieties (a) and (b) of fourth-degree burglary were relatively recent statutory additions to the matrix of laws covering burglary and other forms of breaking and entering. 3 They proscribe, respectively, the breaking and entering of 1) “the dwelling of another” and 2) “the storehouse of another.” They do not require proof of any specific intent to commit any crime inside the dwelling or the storehouse of another. What Herd v. State, supra, said about what is now § 6-205(a) is equally true about § 6-205(b). The most prominent characteristic of the mens rea of that variety of fourth-degree burglary dealt with by § [6-205(a)] is that it creates a mere general-intent and not a specific-intent crime.

That conclusion inexorably follows from looking at the four corners of the statute itself. Section [6-205(a)] expressly prohibits the breaking and entering of the dwelling of another and makes no mention of any specific ²³⁸ intent that must accompany the breaking and/or entering. As in the case of any statutory crime, a special mental element, particularly a specific intent, would have to be expressly spelled out. None has been. 125 Md.App. at 85 , 724 A.2d 693 (emphasis supplied).

Herd went on to explain the hierarchical relationship between burglary in the first degree, burglary in the third degree, and subvariety (a) of burglary in the fourth degree, all of which are designed to protect dwellings. Each of those three escalated criminal proscriptions prohibits the breaking and entering of the dwelling of another. The actus reus of all three crimes is exactly the same. The only differences are in the mens rea.

The differences among the three offenses involve only the existence of a particular specific intent or the absence of any such specific intent. [Burglary in the first degree] involves the specific intent to commit theft or a crime of violence in the burglarized dwelling. When that specific intent is present, the crime is a felony with a maximum term of imprisonment of twenty years. [Burglary in the third degree], the next step down on the ladder of blameworthiness, involves the lesser required specific intent to commit any crime in the burglarized dwelling. When such lesser specific intent is present, the crime is still a felony but is subject to a maximum term of imprisonment of only ten years. [Burglary in the fourth degree (a)], the final step down on the ladder of blameworthiness, does not require a specific intent to commit a crime of any sort in the burglarized dwelling or to do anything else for that matter. For that reason, the offense is only a misdemeanor subject to a maximum term of imprisonment of but three years.

The absence of a specific intent is the only thing that distinguishes [fourth-degree burglary] from [third-degree burglary]. Without that distinction, the legislative scheme would be an absurdity. 125 Md.App. at 85-86 , 724 A.2d 693 (emphasis supplied). In Bane v. State, 73 Md.App. 135, 147-52 , 533 A.2d 309 (1987), Judge Bloom referred to fourth-degree burglary of this ²³⁹ subvariety as a “late starter in the burglary field” and explained that the motivation for the new law, enacted by ch. 661 of the Acts of 1973, was the desire of the State’s Attorneys of Maryland to have a lesser crime on which they could tactically fall back in instances in which they could readily prove the actus reus of breaking and entering but encountered difficulties of proof when it came to the mens rea of a particular specific intent. In 1973, the Maryland Senate Judicial Proceedings Committee received testimony from the State’s Attorneys of various counties and Baltimore City that there was a need for a burglary offense of less severity than comnum law burglary or any of the then applicable statutory burglary-type crimes.

The existence of such an offense, it was argued, would facilitate 'prosecutors in the handling of cases in which the felonious intent, a required element of common law burglary and all of the then statutory burglary offenses, of the intruder could not be clearly shown. Senate Bill 218 was drafted and submitted to the 1973 General Session with the intent of creating a criminal offense to comply with the State’s Attorneys’ wishes. 73 Md.App. at 148 , 533 A.2d 309 (emphasis supplied). Bane was very specific about the limited nature of the intent requirement. Since misdemeanor breaking and entering involves no felonious or larcenous intent, it is a crime of general intent that includes within its scope a variety of acts, including some that are reckless or negligent.

A conviction for that offense may result either from a well-planned scheme—or merely rash, impetuous conduct of a defendant. Id. at 150 , 533 A.2d 309 (emphasis supplied). See also Hawkins v. State, 291 Md. 688, 694 , 436 A.2d 900 (1981). In Warfield v. State, supra, Judge Orth pointed out that, following the lead of the General Assembly’s creation of a general breaking and entering misdemeanor for dwellings in 1973, which became Art. 27, § 31A, the General Assembly provided the same protection for storehouses and other struc ²⁴⁰ tures by ch. 598 of the Acts of 1979.

What then became Art. 27, § 31B has now become subvariety (b) of fourth-degree burglary, indistinguishable from subvariety (a), except for the nature of the structure broken and entered. Judge Orth described the creative process and the new crime: All that we have said about § 31A with respect to intent applies with equal force to § 31B. Section 31B was designed to fill the gap in § 31A by going beyond a dwelling house and including a bevy of structures. The similarity of the language of the two statutes and their legislative history clearly show that § 31B, like § 31A, does not embrace a specific intent but does require a general criminal intent to break and enter.

Sections 31A and 31B of Article 27 create the misdemeanors of criminal trespass. 315 Md. at 497-98, 554 A.2d 1238 . B. Rogues and Vagabonds Whereas subvarieties (a) and (b) of fourth-degree burglary are of recent vintage (dating from 1973 and 1979, respectively), subvarieties (c) and (d) enjoy an ancient lineage. Interesting insight into the common law’s attitude toward rogues and vagabonds may be gleaned from Part IV (Of Public Wrongs) of Sir William Blackstone’s Commentaries on the Law of England (Robert Malcolm Kerr edition, 1962), first published in 1765. In Chapter XIII, Blackstone deals generally with what he calls “Offences against public police.” Aimed at persons of disreputable status or character, his introduction to the category is enlightening.

The last species of offences which especially affect the commonwealth, are those against the public police and economy. By the public police and economy I mean the due regulation and domestic order of the kingdom; whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. This head of offences must therefore ²⁴¹ be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding species. Id. at 162 (emphasis supplied).

Turning to more particularized instances of disreputable behavior, Blackstone first touches upon 1) clandestine marriages, 2) bigamy, and 3) common nuisances. He then turns to “Idleness, vagrants, and disorderly