Frye v. State

Gilbert, C. J., delivered the opinion of the Court. Eugene Shaw Frye was convicted by a jury, in the Criminal Court of Baltimore, of four violations of Md. Ann. Code art. 27, as charged in two separate indictments. On Indictment Number 57534411, Frye was convicted on the first count, murder in the first degree, and the second count, the use of a handgun in the commission of a crime of violence. He was sentenced to imprisonment for the balance of his natural life and a concurrent 5-year term.

On Indictment Number 57534410, Frye was convicted on the first count, robbery with a dangerous and deadly weapon and the eighth count, the use of a handgun in the commission of a crime of violence. He received sentences of 20 years and 5 years respectively. The sentences imposed in Indictment Number 57534410 were made to run concurrently with the sentences imposed in the murder conviction. In this Court, Frye raised the issue that, “Appellant’s conviction of and sentence for both armed robbery and felony murder violated the prohibition against double jeopardy.” We observe that the point was neither raised nor argued in the trial court.

Nevertheless, pursuant to the authority conferred on us by Md. Rule 1085, in order to prevent further proceedings by way of collateral attack and the resultant expenditure of judicial time and public expense, we shall decide the matter. ⁴⁷⁸ The issue posed to us by Frye is the same one that was decided by the Court of Appeals in Newton v. State, 280 Md. 260 , 373 A. 2d 262 (1977). 1 In Newton , the Court, speaking though Judge Eldridge, said: “[T]he defendant’s separate convictions and sentences for the felony of attempted robbery and murder committed in the perpetration of that felony constitute, under the required evidence test, double punishment for the same offense in violation of the Fifth Amendment’s double jeopardy clause. Consequently, the conviction for the lesser offense of attempted robbery must be vacated.” Newton v. State, 280 Md. at 273-74 , 373 A. 2d at 269-70 . (Footnote omitted.) Without recounting all the sordid facts in this case, it is sufficient to note that from the evidence presented, the jury could have found the appellant guilty of murder in the first degree, Md. Ann. Code art. 27, § 407, and guilty of robbery with a dangerous and deadly weapon, Md. Ann. Code art. 27, § 488, as well as two counts of the use of a handgun in the commission of a crime of violence, Md. Ann. Code art. 27, § 36B. There was also evidence from which the jury could have found that the appellant was guilty of so-called “felony murder,” Md. Ann. Code art. 27, § 410.

The nub of the problém is that if the jury found the appellant guilty of the “felony murder” then, under Newton and its progeny, the robbery charge and the. handgun violation directly attributable to the robbery offense would have merged into the felony murder. From the record, it is impossible for us to determine with any degree of certainty which of the permitted inferences the jury drew. Because of the attendant uncertainty, Frye contends that the sentences should be merged. The State, on the other hand, asserts that Newton does not require such a result and that the sentences for the robbery and the concomitant handgun violation should not be disturbed. ⁴⁷⁹ To bolster its position, the State relies heavily upon the following language of Newton : “If . . . the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under [Md. Ann. Code art. 27] § 407, or if the evidence is sufficient for a jury to find those elements, the offenses would not merge.

Each offense would then