Davis v. State

ADKINS, Judge, Specially Assigned. In the Circuit Court for Baltimore County, appellant, Drexel Otto Davis, was convicted of daytime housebreaking. Code, Art. 27, § 643B (a) defines daytime housebreaking as a crime of violence. Pursuant to § 643B (b), Davis was sentenced to life imprisonment without the possibility of parole.

Section 643B (b) provides: ⁵⁸⁵ 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 convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole. Regardless of any law to the contrary, the provisions of this section are mandatory. Davis now questions the sufficiency of the evidence to sustain his conviction. He questions more strenuously the establishment of the statutory predicates for his mandatory life sentence, specifically, whether the trial judge erred in finding that he had been convicted of three previous crimes of violence and thrice confined as a result thereof.

Finally, he ardently attacks, on both equal protection and eighth amendment grounds, the constitutionality of his sentence. Sufficiency of the Evidence “In reviewing a record for the sufficiency of evidence to support a criminal conviction, the standard we apply is ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ ” Waddell v. State, 65 Md.App. 606, 618 , 501 A.2d 865 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 318 , 99 S.Ct. 2781, 2788 , 61 L.Ed.2d 560 (1979)). Davis was convicted of “breaking a dwelling house in the daytime ... with intent to steal ... the personal goods of another of any value therefrom ...” Art. 27, § 30(b). The record shows that the victim’s home was secure when he left it at 9:00 a.m. on the day of the crime.

It was open when he returned in mid-afternoon. There were signs of forcible entry. Davis’s fingerprint was found on a window. On the day of the crime, Davis was seen wearing a Sunpapers jacket near the victim’s home.

A jacket of that description was later determined to be missing from the victim’s home. Next to Davis was a bucket of coins (the coins were later identified by the victim as his son’s). Davis proffered no non-culpable explanation for the presence of ⁵⁸⁶ his fingerprint and no explanation for his possession of the coins. This evidence was sufficient to support his conviction of daytime housebreaking.

Conviction of Previous Crimes of Violence The State charged that Davis had previously been convicted of eight crimes of violence. The trial court ruled that the State failed to prove four of them, but accepted the remaining four. One of these, a 1975 daytime housebreaking conviction in Anne Arundel County, Davis concedes to be valid. Thus, if the State established any two of the remaining three convictions (plus Davis’s confinement as a result thereof) the predicates of § 643B(b) were met.

Two of the convictions questioned by Davis involve charges brought against Davis in the erstwhile Criminal Court of Baltimore, in cases numbered 28119616 and 28119621. The former concerned an incident that took place on January 19, 1981, the latter one that occurred on February 1, 1981. Each case involved a different location and victim. On October 28, 1981, Davis entered a plea of guilty to the third count of the information filed in each case.

The third counts were identical. Each read thus: And the State’s Attorney aforesaid ..., inform[s] the said Court that the said Defendant ..., on the said date, at the said place, unlawfully did break the dwelling house of the said Complainant, at the aforesaid location, with intent to steal, take and carry away therefrom the goods and chattels, monies and properties of value, of the said Complainant contrary to the form of the Act of Assembly, in such case made and provided, and against the peace, government and dignity of the State (Art. 27, Sec. 30 b). Davis is of the view that his convictions under these counts were invalid because each count failed to charge an offense. This is so, he thinks, because each count omits an allegation that the crime occurred “in the daytime.” He perceives “daytime” as an essential element of the crime ⁵⁸⁷ defined by Art. 27, § 30(b), just as “nighttime” is an essential element of the crime of burglary.

We disagree. In Reagan v. State, 4 Md.App. 590, 596 , 244 A.2d 623 (1968), we explained that “the omission of an allegation that [the offense occurred in the daytime] is neither a matter of substance ... nor an essential element or fact ...” The “daytime” aspect of § 30(b) is not used to define or characterize the crime, but merely to distinguish it from burglary. Moreover, even were it otherwise, Davis would not prevail. The third count of each of the 1981 informations made specific reference to Art. 27, § 30(b) as being the statute underlying the charge.

Because each count was framed in that manner, each incorporated by reference the essential elements of the offense. See Whitehead v. State, 54 Md.App. 428, 445 , 458 A.2d 905 , cert. denied, 296 Md. 655 (1983). Since the State proved that Davis previously had been convicted of three crimes of violence, we need not examine the sufficiency of the other convictions challenged by him. That particular predicate for the operation of § 643B(b) was established.

Incarceration as a Result of Prior Convictions As we have seen, the invocation of § 643B(b) requires proof both of at least three prior convictions of crimes of violence and of at least three incarcerations as a result thereof. Davis claims this second prerequisite was not met because his identity as prisoner was not demonstrated adequately. This contention is based on the testimony of Detective Leonard Butt. Butt compared fingerprint records from the Division of Correction, and from the Baltimore County Police Department with prints he had taken from Davis.

On the basis of these comparisons, he identified Davis as ⁵⁸⁸ the individual who had been at least thrice incarcerated for the crimes of violence of which Davis had been convicted. Davis argues that Butt, who had not been certified by the International Association for Identification, should not have been allowed to testify as a fingerprint expert. The record shows, however, that Butt had been a member of the Baltimore County Crime Laboratory for three years, and of its Latent Print Identification Unit for a year and a half. During that time he had examined nearly 2,500 individual prints.

He had taken courses dealing with fingerprinting and had previously testified in the Circuit Court for Baltimore County as an expert in latent print comparison. Davis concedes that the acceptance of an individual as an expert is within the discretion of the trial court. Given the record before us, we hold that the court was neither clearly erroneous nor did it abuse its discretion when it admitted Butt as a fingerprint expert. Winkles v. State, 40 Md.App. 616, 622-23 , 392 A.2d 1173 (1978).

Davis also would have us reject Butt’s identification testimony because of the presence on a fingerprint card of some features that might have been either extraneous marks or fingerprint characteristics. Butt admitted that another examiner might disagree as to whether these features were fingerprint characteristics or dirt. But Davis produced no other expert to question Butt’s identification, and Butt’s admission went only to the weight or credibility of his testimony. See Trimble v. State, 300 Md. 387, 404 , 478 A.2d 1143 (1984).

That Davis could question Butt’s testimony rendered it neither inadmissible nor insufficient, if believed, to establish Davis’s identity as the person who had been incarcerated. Butt’s testimony, taken together with the presumption that “[identical names give rise to a presumption [inference] of identity of person,” Bowers v. State, 298 Md. 115, 130 , 468 A.2d 101 (1983) (quoting 1 Wharton’s Criminal Evidence, § 103 (C. Torcia, 13th ed. 1972)), was sufficient to render the fact-finder’s decision as to Davis’s incar ⁵⁸⁹ ceration not clearly erroneous. Davis’s full name—Drexel Otto Davis—is sufficiently unusual to support the inference. Thus, the second predicate for the operation of § 643B(b) was established adequately.

Constitutional Questions Davis’s constitutional challenges are bifurcated. One raises equal protection concerns; the other the issue of the infliction of cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. The equal protection argument rests on what Davis sees as a lack of uniformity, as among the various Maryland State’s Attorney’s Offices, in the invocation of the mandatory sentencing law. He also contends that the Baltimore County State’s Attorney has used or eschewed that law in non-uniform fashion within that county.

We addressed and rejected similar arguments in Middleton v. State, 67 Md.App. 159 , 506 A.2d 1191 (1986). There we explained that merely showing the existence of a lack of uniform policy in pursuing mandatory sentencing is not enough. To succeed in an equal protection claim, an appellant also must show either that the policy is motivated by a discriminatory purpose or that the invocation of mandatory sentencing in a particular case was based on an unjustifiable standard, such as race, religion, or some other arbitrary classification. 67 Md.App. at 168-172 , 506 A.2d 1191 . As was the case with the appellant in Middleton , Davis has failed to make this additional showing.

For the reasons stated in Middleton , we reject his equal protection argument. Davis’s eighth amendment claim is less easily disposed of. Citing Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983), he asserts that his sentence is disproportionate to the offense committed. He urges us to undertake a proportionality review like that outlined in Solem, 463 U.S. at 292 , 103 S.Ct. at 3010 : “[A] court’s proportionality analysis under the Eighth Amendment should be guided ⁵⁹⁰ by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” If we apply those standards, says Davis, we must hold his life sentence without parole to be in violation of the eighth amendment.

We agree. In both Middleton and Bryan v. State, 63 Md.App. 210 , 492 A.2d 644 (1985), we considered and rejected eighth amendment challenges to the mandatory sentencing law. Both of those cases involved mandatory sentences of 25 years imprisonment without parole under § 643B(c). In Bryan we distinguished Solem.in part because Solem involved a life sentence without parole, whereas § 643B(c) involved only a 25-year sentence without parole, thus providing “some hope of an eventual release from prison.” 63 Md.App. at 219 , 492 A.2d 644 .

The Middleton panel disposed of that appellant’s eighth amendment challenge on the basis of Bryan. 67 Md.App. at 172 . By contrast with Bryan, Middleton, and with Rummel v. Estelle, 445 U.S. 263 , 100 S.Ct. 1133 , 63 L.Ed.2d 382 (1980), which the State contends is controlling here, this case concerns a life sentence without the possibility of parole. Only one other penalty authorized by Maryland law, capital punishment, exceeds its severity. In this vital way, this case and Solem are alike.

Keeping in mind that it is “a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted,” Solem, 463 U.S. at 290 , 103 S.Ct. at 3009 , we are compelled to consider the three objective criteria articulated in Solem as a guide for eighth amendment proportionality analysis. 1 ⁵⁹¹ A. The Gravity of the Offense and The Harshness of the Penalty In evaluating the claim of Davis that his penalty was too harsh for the offense of daytime housebreaking, we first examine the operation of the Maryland recidivist law. Section 643B(b) may not be invoked unless an offender has been convicted of at least four “crimes of violence.” Davis satisfied this prerequisite by being convicted of three prior