Green v. State

WENNER, Judge. Appellant, Frank Edward Green, was convicted at a bench trial in the Circuit Court for Anne Arundel County of first degree murder, three counts each of attempted murder, assault with intent to murder, and assault with intent to avoid lawful apprehension, and numerous related offenses. 1 Appellant was sentenced by the court to four consecutive terms of life imprisonment for the first degree murder and attempted murder convictions. For the assault with intent to murder and assault with intent to avoid lawful apprehension convictions, appellant was sentenced to three thirty year and three ten year terms of imprisonment, respectively, concurrent with the sentences for attempted murder, and consecutive to all other sentences. 2 Upon appeal, appellant makes the following assertions: ⁵⁰⁹ I. The convictions for assault with intent to murder and assault with intent to avoid lawful apprehension should merge into the 'convictions for attempted murder.

II

The court erred when it denied his motion to suppress his statement and the identification testimony of two State’s witnesses. Inasmuch as we agree with appellant’s first assertion, we shall vacate the sentences for assault with intent to murder and for assault with intent to avoid lawful apprehension. In all other respects, we shall affirm the judgments of the circuit court. Background In the early evening of September 18, 1986, a Havre de Grace police officer came upon an abandoned van protruding from the inside shoulder into the fast lane of eastbound U.S. Route 40 near the Thomas J. Hatem Memorial Bridge.

Within minutes, the officer was joined by Deputy Stephen O. Wagner of the Harford County Sheriff’s Department, Robert F. Pyles, Sr., a Toll Facilities officer, as well as other members of the Havre de Grace Police Department. The officers subsequently learned that the van had been reported as stolen. In the course of the investigation, Officer Pyles left the van to pick up for questioning a black male he had observed walking across the bridge. While returning to the van, Pyles lost control of his vehicle, which struck a concrete barrier in the median strip of Route 40. ⁵¹⁰ Wagner and Officer Dennis P. Rittershofer of the Havre de Grace Police Department immediately responded to Pyles’ vehicle.

Wagner found Pyles slumped over in the front seat of the vehicle, bleeding from the head. Wagner also saw a black male, later identified as the appellant, in the rear seat of Pyles’ vehicle. As Wagner and Rittershofer approached, appellant began to yell and attempted to get out of the vehicle. He was restrained by Rittershofer while Wagner went to the assistance of Pyles.

Moments later, Wagner heard a gunshot. Wagner turned and saw appellant with a gun and Rittershofer lying on the ground. Appellant shot Wagner in the arm and fled the scene. Officers Rittershofer and Pyles were found to have suffered gunshot wounds to the head.

Pyles died from his wound. The search for appellant continued into the morning hours of September 19, 1986, when he was apprehended by a number of officers at about 6:30 a.m., near the Harford Memorial Hospital in Havre de Grace. Before he was apprehended, appellant had attempted, at gunpoint, to force a civilian, David E. Rimel, to drive him from Rimel’s home in Havre de Grace to Baltimore. When that effort failed, appellant entered the home of Jeffrey C. Briney, Sr., and forced Briney to give him a shirt and the keys to a 1973 Plymouth.

Appellant also shot Officer Charles W. Briggs, III, of the Havre de Grace police, in the head and in the back. Briggs had responded to a call from someone who had purportedly seen the appellant. I. Appellant first contends that his convictions for assault with intent to murder and assault with intent to avoid lawful apprehension should have been merged with his convictions for attempted murder. The State concedes that appellant’s convictions for assault with intent to murder and assault with intent to avoid lawful apprehension merge.

We agree. ⁵¹¹ Under Maryland law, whether two offenses are the same for double jeopardy purposes is determined by applying the “required evidence test.” State v. Holmes, 310 Md. 260 , 528 A.2d 1279 (1987). Nevertheless, the Court of Appeals has recognized that, even though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction. State v. Jenkins, 307 Md. 501, 518 , 515 A.2d 465 (1986) (quoting Brooks v. State, 284 Md. 416 , 397 A.2d 596 (1979)). In Jenkins, supra, the Court said that “[wjhere the same single act of assault meets the statutory requirements for different aggravated assaults, courts have not ascribed to legislatures the intent that separate convictions and sentences be imposed.” Id. 307 Md. at 518, 519 , 515 A.2d 465 .

The Court went on to hold that the offenses of assault with intent to murder and assault with intent to maim, disfigure or disable, when based upon the same act of assault, are not separate for purposes of conviction and sentence. Id. at 521 , 515 A.2d 465 . We think that that rule applies to the circumstances sub judice, and hold that separate sentences may not be imposed for appellant’s convictions for assault with intent to murder and assault with intent to avoid lawful apprehension. And, for purposes of merger by legislative intent, the offense for the lesser maximum penalty merges into the offense carrying the greater penalty.

Id. Accordingly, we hold that appellant’s convictions for assault with intent to avoid lawful apprehension merge into the convictions for assault with intent to murder. Where, as here, appellant’s convictions were based upon a single act, we also agree with appellant that his convictions for assault with intent to murder should have been merged into his convictions for attempted murder. We therefore hold that appellant’s convictions for assault with intent to ⁵¹² murder and assault with intent to avoid lawful apprehension merge with his convictions for attempted murder.

II

Appellant next contends that the circuit court erred when it denied his motion to suppress 3 the statement that he gave to the police and the identification testimony of Deputy Wagner and David E. Rimel. We disagree. A. Appellant asserts that, because he requested an attorney when he was first apprehended by the police, the statement that he gave to the police subsequent to his arrest, but before counsel was provided him, was obtained in violation of the rule promulgated in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , reh’g denied, 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981). 4 The record, however, does not support this contention. There were numerous officers involved in appellant’s apprehension and arrest.

All but one of those officers testified that appellant did not ask for an attorney when he was apprehended. Furthermore, although appellant was twice advised of his Miranda 5 rights at the time of his arrest, he did not assert his right to counsel. One officer recalled a single comment made by appellant, when he was first apprehended, about getting an attorney. The officer said that it was made in the context of repeated assertions ⁵¹³ by appellant that he wanted to talk to the press, that he had not done anything wrong, and that he wanted to know why the police had shot him.

Upon cross-examination, the officer testified, without objection, that it was his belief that appellant intended to file a civil suit against the police, and that that was why appellant had mentioned getting an attorney. While appellant contended that a civil suit was not his primary motivation for requesting an attorney, and that he had asserted his right to counsel several times, the court found from all the evidence that appellant had not asserted his right to counsel prior to giving a statement to the police. From our examination of the record, we cannot say that that finding was clearly erroneous. Md.Rule 8-131(c).

Nor do we find an Edwards violation in the circumstances we have just described. B. Appellant also asserts that his extrajudicial identifications by Wagner and Rimel were impermissibly suggestive. The admissibility of an extrajudicial identification, of course, turns on reliability, not on suggestiveness. Loud v. State, 63 Md.App. 702, 707 , 493 A.2d 1092 , cert. denied, 304 Md. 299 , 498 A.2d