Hagans v. State

ELDRIDGE, Judge. The two criminal cases before us were entirely separate prosecutions, for unrelated offenses, in different counties, at different times, and involving different defendants. Nevertheless, the only issue presented in the Hagans case, and the principal issue presented in the Allen case, are identical. It is whether, as a matter of Maryland common law, a defendant ordinarily can be convicted of an offense which is not charged but which is a lesser included offense of one that is charged.

Because of this common issue, we shall decide both cases in one opinion. I. The facts in each case relevant to the lesser included offense issue can be briefly stated. A. Hagans v. State According to the Agreed Statement of Facts, during the night of January 17, 1986, a man knocked on an apartment door in Montgomery County, Maryland, and announced: “It’s the cops.” Through a peephole, the resident of the apartment saw a man wearing a cap with a silver badge on it. She did not believe that he was a police officer because he had referred to himself as a “cop.” Consequently, she called the police.

In response to the call, seven plain clothes police officers went to the apartment complex where the incident occurred. They saw three men in a station wagon that was being driven without its lights on. The car stopped, and a man, ⁴³⁴ later identified as the defendant, Antonio Calvin Hagans, got out, walked around, picked up a long silver object, and returned to the car. The police cars followed the station wagon as. it left the complex.

The station wagon was pulled over and searched. Under the seat where Hagans was sitting, the police found a large knife and a baseball cap with a silver badge. The three men in the car were then arrested. At the subsequent line-up, the resident of the apartment identified one of the men, but not Hagans, as the man standing outside the door.

Hagans was charged in the Circuit Court for Montgomery County with attempt to commit common law burglary and nine other offenses all based on the incident described above. He was not, however, expressly charged with attempted breaking and entering a dwelling house of another in violation of Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 31A. Hagans elected a jury trial. At the trial, after the presentation of evidence by both sides, and during argument on the defendant’s motions for judgment of acquittal, the trial judge indicated that he intended to submit to the jury, as a lesser included offense of burglary, the offense of attempted breaking and entering a dwelling house of another.

Defense counsel objected to the submission of the attempted breaking and entering offense to the jury, but the prosecuting attorney argued in favor of the submission. Thereafter, the trial judge instructed the jury on attempted breaking and entering a dwelling house of another. All but two of the numerous charges against the defendant Hagans were disposed of by nolle prosequis, by the grant of motions for judgments of acquittal, and by jury acquittal. Hagans was convicted by the jury of attempted breaking and entering a dwelling house of another and carrying a concealed weapon.

He was sentenced to three years imprisonment on the former conviction and two years imprisonment, to be served consecutively, on the latter. The Court of Special Appeals affirmed in an unreported opinion. ⁴³⁵ This Court then granted the defendant’s petition for a writ of certiorari. In the petition and in his brief, Hagans concedes that attempted breaking and entering a dwelling house of another is a lesser included offense of attempted common law burglary. The defendant presents a single question for our review, stating: “The issue in this case is whether or not a defendant who is charged with one offense can be convicted of a lesser included offense which is not contained in the charging document.” (Petitioner’s brief, p. 5).

B. Allen v. State Derek Darnell Allen was tried before a jury in the Circuit Court for Talbot County on a seven count information charging storehouse breaking (Art. 27, § 32), storehouse breaking and stealing (Art. 27, § 38), storehouse breaking and entering (Art. 27, § 31B), malicious destruction of property (Art. 27, § 111), trespassing on school property (Code (1978, 1989 Repl.Vol.), § 26—102(d)(1) of the Education Article), willfully damaging school property (§ 26-102(d)(8) of the Education Article), and theft of $800 or more (Art. 27, §§ 340-344). The charges were based on the theft of a twelve-year-old color television set, a seven-year-old tape recorder, a cassette player and a set of headphones from a public school in Talbot County. According to a school official, the original cost of the television was $318, the tape recorder $66, the cassette player $52, and the headphones $116. At trial, the testimony was inconsistent in regard to the extent of Allen’s involvement.

In addition, the defendant took the position that the value of the goods taken was less than $300. As previously mentioned, the defendant was expressly charged with theft over $800, but he was not expressly charged with theft under $300. 1 After the evidentiary ⁴³⁶ phase of the trial, during a discussion concerning jury instructions and the jury verdict sheet, a question arose concerning an instruction on theft under $300. The prosecuting attorney urged that the court instruct on, and that the verdict sheet contain a choice for, theft under $300 on the theory that it “is a lesser included offense.” He argued: “Your Honor, as I stated in Chambers I—the law of theft is if the jury is able to find that a theft was committed, and the value of the items stolen was $300 or more, then they can find the defendant guilty of felony theft. If however, they find that the State did not [meet] its burden on the value of the items that were stolen, but they believe all the other elements of the crime of theft occurred, namely, that the defendant stole something, then they can find the defendant guilty of theft under $300.

It is a lesser included offense of the—of the offense of theft.” The defense attorney objected, saying: “And second of all, the jury verdict sheet as proffered provides—although the charging document only charged theft over $300, it provides a means by which they could find the defendant guilty of theft under $300, and I would object to that; If we weren’t charged with theft under, I don’t think it should be on the verdict sheet.” The trial court, agreeing with the prosecution, submitted to the jury the option of convicting Allen of theft under $300. The jury acquitted Allen of storehouse breaking and stealing, acquitted him of theft over $300, and acquitted him of malicious destruction of property. The jury convict ⁴³⁷ ed Allen of theft under $300. The jurors were unable to agree as to the remaining charges, and those charges were subsequently nolle pressed.

Allen was sentenced to the maximum eighteen months imprisonment on the conviction of theft under $300. The judgment was affirmed by the Court of Special Appeals in an unreported opinion. Allen filed in this Court a petition for a writ of certiorari, arguing that the case presented the identical issue as the Hagans case, namely “whether the trial court can send a lesser included offense to the jury if that offense is not charged in the charging document.” (Petition, p. 3). We granted the petition.

II

Before addressing the issue presented by both petitioners, we shall deal with a threshold matter raised by the State in the Allen ease. The State argues that the Allen ease does not present the same issue as the Hagans case because, according to the State, theft under $300 should not be treated as a lesser included offense of theft over $300. In the State’s view, theft over $300 and theft under $300 are to be regarded as the identical offense for all purposes prior to the sentencing phase of the trial. It is contended that the value of the goods need not be decided by the jury but should be determined by the judge at sentencing.

The State thus asserts (Response to Certiorari Petition, p. 2): “There is no lesser included offense, and thus no issue similar to that of Hagans. “Theft is a single offense for purposes of both charging documents and jury instructions____ The value of the goods stolen is not an element of the offense and is relevant only to sentencing.... Thus, an allegation of value is mere surplusage in a charging document which charges theft; it 'has no effect on the offense to be submitted for the jury’s consideration. When the State charged Allen with theft of goods valued at over $300.00, he could be convicted of theft regardless of whether the ⁴³⁸ evidence showed that the goods were worth more than $300.00.” We agree that, generally, theft in violation of Art. 27, §§ 340-344, is to be regarded as a single offense. Nevertheless, we cannot subscribe to the State’s theory concerning the limited relevance of value.

Furthermore, for purposes of the principles concerning lesser included offenses, theft under $300 should be treated as a lesser included offense of theft of $300 or more. Art. 27, §§ 340-344, known as the consolidated theft statute, and enacted by Ch. 849 of the Acts of 1978, was thoroughly reviewed by Chief Judge Murphy for the Court in Jones v. State, 303 Md. 323 , 493 A.2d 1062 (1985), and in Rice v. State, 311 Md. 116 , 532 A.2d 1357 (1987). As explained in Jones v. State, supra, 303 Md. at 326-327 , 493 A.2d at 1063-1064 , the statute “consolidated a number of theft-related offenses (not involving force or coercion) into a single newly created statutory offense known as theft. Section 341 specifies that ‘[c]onduct designated as theft’ under the Act’s provisions ‘constitutes a single crime embracing, among others, the separate crimes heretofore known as larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen property.’ Section 342 enumerates five different types of criminal conduct as constituting theft under the statute, i.e., (a) obtaining or exerting unauthorized control; (b) obtaining control by deception; (c) possession of stolen property; (d) obtaining control of lost, mislaid or mistakenly delivered property; and (e) obtaining services by deception.” (Footnotes omitted).

The statute also divided the offense of theft into a felony and a misdemeanor, with the valuation of $300 being the dividing line. Section 342(f) thus provides as follows: “(1) A person convicted of theft where the property or services that was the subject of the theft has a value of $300 or greater is guilty of a felony and shall restore the ⁴³⁹ property taken to the owner or pay him the value of the property or services, and be fined not more than $1,000, or be imprisoned for not more than 15 years, or be both fined and imprisoned in the discretion of the court. “(2) A person convicted of theft where the property or services that was the subject of the theft has a value of less than $300 is guilty of a misdemeanor and shall restore the property taken to the owner or pay him the value of the property or services, and be fined not more than $500, or be imprisoned for not more than 18 months, or be both fined and imprisoned in the discretion of the court; however, all actions or prosecutions for theft where the property or services that was the subject of the theft has a value of less than $300 shall be commenced within 2 years after the commission of the offense.” Except for the monetary amount, this division corresponds to the previous division between grand larceny (larceny over $100, Code (1976 Repl.Vol.), Art. 27, § 340) and petty larceny (larceny under $100, Code (1976 Repl.Vol.), Art. 27, § 341). See Kawamura v. State, 299 Md. 276, 296, 295-296 , 473 A.2d 438 (1984). In arguing that theft under $300 is not a lesser included offense of theft of $300 or more, the State principally relies upon the language of § 341 of the consolidated theft statute, and on Jones v. State, supra, and Rice v. State, supra.

As previously indicated, § 341 provides that conduct “designated as theft” in the statute “constitutes a single crime” and embraces the previously separate crimes known as larceny, embezzlement, false pretenses, receiving, etc. Section 341, however, makes no mention of the division of theft into a felony and a misdemeanor depending on value, and, in referring to previous crimes, the section omits any reference to the traditional division of larceny based upon the value of the property taken. Moreover, neither Jones v. State, supra, nor Rice v. State, supra, dealt with the distinction between theft of $300 or more and theft under $300. The issue in Jones was the constitutionality of the statutory form of charging ⁴⁴⁰ document authorized by § 344 of the consolidated theft statute. The defendant in Jones argued that the charging document was required to set forth the specific means by which, or circumstances in which, the accused committed the theft.

In rejecting this argument, and upholding the constitutionality of the statutory form, our opinion in Jones in no way touched upon the question of whether theft under $300 was a lesser included offense of theft involving $300 or more. Rice v. State, supra, was concerned with the nature of the alternate methods of committing theft, set forth in § 342 of the statute, for jury unanimity purposes. Like Jones , the Rice opinion does not address the issue presented in the instant case. The State, in urging that theft under $300 is not a lesser included offense of theft over $300, emphasizes that the theft statute created a single offense and that the division between theft under and theft over $300 was for purposes of punishment.

The fact that the consolidated theft statute designates theft as a single crime, and that the division into felonious and non-felonious theft may have been chiefly for the purpose of punishment, does not lead to the conclusion that a value of $300 or more is not an element of felonious theft, or that value becomes pertinent only at sentencing, or that non-felonious theft is not a lesser included offense. With respect to being a single crime divided for purpose of punishment, theft is completely similar to larceny. Larceny at common law was a single offense which, by the Statute of Westminster I, 3 Edw., c. 15 (1275) was divided into grand larceny and petty larceny for the purpose of punishment. The dividing line was originally twelve pence.

See R. Perkins, Criminal Law 273-274 (2d ed.1969). Nevertheless, valuation was regarded as an element of grand larceny, and the State at trial was required to prove that the goods stolen had a value of $100 or more. See, e.g., Mercer v. State, 237 Md. 479, 485 , 206 A.2d 797 (1965) (“As we have held, on a charge of grand larceny the State must prove the value of the stolen article to be $100 or in excess thereof”); Lauder v. State, 233 Md. 142, 144 , 195 ⁴⁴¹ A.2d 610 (1963) (“The State had the burden of showing that the article taken had a value of $100.00 or more, under the count for grand larceny based on ... Art. 27, § 340”); Cofflin v. State, 230 Md. 139, 144 , 186 A.2d 216 (1962); Horsey v. State, 225 Md. 80, 83 , 169 A.2d 457 (1961); Holtman v. State, 219 Md. 512, 515 , 150 A.2d 223 (1959).

Because the prosecution was required to prove, as an element of grand larceny, the requisite valuation, it followed that grand larceny was the greater offense and petty larceny was treated as a lesser included offense. See 2 East, Pleas of the Crown, Ch. 16, § 159 (1806); 2 Hale, Pleas of the Crown, § 302 (1847); 1 Hawkins, Pleas of the Crown, Ch. 19, § 2 (8th ed. 1824). As indicated in some of the cases (e.g., Holtman v. State, supra, 219 Md. at 515 , 150 A.2d at 224 ), after petty larceny was made a misdemeanor, one of the reasons for treating the requisite valuation as an element of grand larceny, to be charged and proven by the prosecution at trial, was that grand larceny was felonious and petty larceny non-felonious. One has a right, long before the sentencing phase of his trial, to know whether he is being charged with a felony or a misdemeanor.

See Whittington v. State, 173 Md. 387 , 196 A. 314 (1938). Cf. Brinkley v. State, 224 Md. 391 , 168 A.2d 191 , cert. denied, 368 U.S. 853 , 82 S.Ct. 88 , 7 L.Ed.2d 50 (1961). The same reason is fully applicable under the consolidated theft statute.

One should know, long before the imposition of sentence, whether he has been charged with a felony or a misdemeanor. The language of the theft statute itself suggests that valuation is an element of the offense to be set forth in the charging document. Section 844(a) of the statute provides as follows (emphasis added): “(a) Indictment, information, warrant, or other charging document—In any indictment, information, warrant, or other charging document for theft it is sufficient to use a formula substantially to the following effect: ‘That A-B on the____day of ..................- ⁴⁴² 19..., in the County (City) aforesaid, did steal (here specifying the property or services stolen) of C-D, having a value of (less than $300 or $300 or greater) in violation of Article 27, § 342, of the Annotated Code of Maryland; 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.’ ” If, as the State argues, value is surplusage, it is difficult to understand why the General Assembly provided for an allegation of value in the statutory form charging document. Not only is the consolidated theft statute similar to common law larceny with regard to value being a differentiating element between a greater and a lesser included offense, but the theft statute in this regard is analogous to several other statutory provisions.

For example, in Spratt v. State, 315 Md. 680 , 556 A.2d 667 (1989), we recently dealt with malicious destruction of property, Art. 27, § 111. The Court, in an opinion by Judge Blackwell, initially pointed out that, “[w]hile the crime of malicious destruction of property has been traditionally recognized ... as one criminal offense, Maryland has codified the offense so that for many purposes it is treated as two separate crimes based upon the value of the property destroyed.” 315 Md. at 681 , 556 A.2d at 667 . We went on to hold, because value of $300 or more is an element of the greater offense, that if the defendant is to be convicted and sentenced for the greater offense, the State “must specifically charge and prove the value of the destroyed property, greater than $300. The defendant is entitled to a finding by the trier of fact that the State’s charge of the greater offense was proven beyond a reasonable doubt.” 315 Md. at 686 , 556 A.2d at 669-670 .

And later (ibid.): “Maryland case law generally supports the notion that where a criminal statute separates the offense by a value determination, it is necessary for the State to prove value in terms of the sufficiency of the evidence.” ⁴⁴³ As to statutory theft offenses, other courts have held that value is an element of the offense. With regard to the offense of theft of United States property in excess of $100 ( 18 U.S.C. § 641 ) for example, the United States Court of Appeals for the Fifth Circuit stated, United States v. Shackelford, 709 F.2d 911, 912 (5th Cir.), cert. denied, 464 U.S. 899 , 104 S.Ct. 258 , 78 L.Ed.2d 289 (1983): “The value of the stolen property is an essential element of the offense in question and must be proved in the same manner as any other essential element.” See, in addition, the cases reviewed by Judge Blackwell in Spratt v. State, supra, 315 Md. at 688-690 , 556 A.2d at 671 . Moreover, as our previous discussion of larceny demonstrates, merely because an offense is designated as a “single offense” does not preclude treating it as separate offenses for certain purposes. For example, in Huffington v. State, 302 Md. 184, 188 , 486 A.2d 200, 202 (1985), cert. denied, 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986), we pointed out that, while historically “all murder is regarded as a single crime,” nevertheless premeditated murder and felony murder must be treated as separate offenses, with distinct elements, for some purposes.

Particularly where an offense is divided into a more serious degree and a less serious degree, based upon the presence or absence of a specific valuation or some other particular element, the division creates a greater and a lesser included offense. Thus, it is often said that premeditated first degree murder and second degree murder constitute a single crime, divided into degrees for purposes of punishment. Gladden v. State, 273 Md. 383, 389-390 , 330 A.2d 176 (1974), and cases there cited. See Robinson v. State, 307 Md. 738, 749 , 517 A.2d 94 (1986); Campbell v. State, 293 Md. 438, 441 , 444 A.2d 1034 (1982).

Nevertheless, second degree murder is also for some purposes treated as a different offense, being a lesser included offense of first degree murder. Similarly, robbery is usually characterized as one offense, with the division between armed robbery and basic robbery being for purposes of punishment. Hook v. State, 315 Md. 25 , 32 n. ⁴⁴⁴ 10, 553 A.2d 233 , 236 n. 10 (1989). But, for some purposes, they are regarded as separate offenses with robbery being the lesser included offense of armed robbery.

See generally, e.g., Huffington v. State, supra, 302 Md. at 190-191 , 486 A.2d at 203-204 ; State v. Moulden, 292 Md. 666, 675-680 , 441 A.2d 699 (1982); Ward v. State, 290 Md. 76, 92 , 427 A.2d 1008 (1981); Sweetwine v. State, 288 Md. 199, 200-201 , 421 A.2d 60 , cert. denied, 449 U.S. 1017 , 101 S.Ct. 579 , 66 L.Ed.2d 477 (1980); Bynum v. State, 277 Md. 703, 705 , 357 A.2d 339 , cert. denied, 429 U.S. 899 , 97 S.Ct. 264 , 50 L.Ed.2d 183 (1976). Like larceny, robbery, malicious destruction of property, and murder, theft under the consolidated theft statute is divided into a greater offense and a lesser included offense, depending on the presence or absence of a particular element, namely the taking of goods having a value of $300 or more. Consequently, the Allen case presents the same issue as the Hagans case.

III

On several occasions in recent times this Court has noted that it has not actually decided whether a defendant, charged with a greater offense, can be convicted of a lesser included offense which was not specifically charged. See Hook v. State, supra, 315 Md. at 41 n. 19, 553 A.2d at 240 n. 19; Shell v. State, 307 Md. 46 , 51 n. 2, 512 A.2d 358 (1986); Hawkins v. State, 291 Md. 688, 689 , 436 A.2d 900 (1981); Grimes v. State, 290 Md. 236, 240 , 429 A.2d 228 (1981); Bennett v. State, 229 Md. 208, 217 , 182 A.2d 815 (1962). 2 Nonetheless, while not actually deciding this question, two of our earlier decisions were premised upon the clear understanding that one charged with a greater offense could be convicted of an uncharged lesser included ⁴⁴⁵ offense. Weighorst v. The State, 7 Md. 442 (1855); State v. Flannigan, 6 Md. 167 (1854). 3 At common law it was settled that a defendant, charged only with a greater offense, could be convicted of an uncharged lesser included offense as long as both were felonies or both misdemeanors. 2 Hale, Pleas of the Crown, supra, § 302; 9 Halsbury The Law of England, § 726 (1909); 2 Hawkins, Pleas of the Crown, supra, Ch. 47, §§ 5-6, 620; 1 Chitty, Criminal Law 520-521 (1819). See Schmuck v. U.S., — U.S.-, 109 S.Ct. 1443, 1451-1452 , 103 L.Ed.2d 734 (1989); Beck v. Alabama, 447 U.S. 625, 633 , 100 S.Ct 2382, 2387 , 65 L.Ed.2d 392 (1980); Brown v. State, 206 So.2d 377, 380 (Fla.1968); Commonwealth v. Kellyon, 278 Pa. 59 , 122 A. 166, 167