Hardy v. State

¹²⁶ COLE, Judge. The issue we must decide in this case is whether an indictment charging a juvenile with attempted murder vests exclusive original jurisdiction in the Circuit Court to try the juvenile as an adult. Fundamental to our decision is a determination of the maximum penalty for the crime of attempted murder. The facts giving rise to this issue may be summarized as follows.

Lawrence Hardy, a juvenile, was indicted by a Montgomery County Grand Jury on December 10, 1981, on two counts of attempted common law murder, 1 assault with intent to rob, and related offenses. Two months later, the Grand Jury returned a second indictment charging Hardy with two counts of attempted murder in the first degree. 2 The State entered a nolle prosequi concerning the two counts set forth in the first indictment, leaving in their stead the two counts of attempted first degree murder. ¹²⁷ The State sought to try Hardy as an adult pursuant to Md.Code (1974, 1984 Repl.Vol.), § 3-804(d)(l), Courts and Judicial Proceedings Article, which provides that a juvenile court does not have jurisdiction over “[a] child 14 years old or older alleged to have done an act which, if committed by an adult, would be a crime punishable by death or life imprisonment!].]” The State’s theory was that Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 412(b) authorizes a punishment of death or life imprisonment for first degree murder, and § 644A of Article 27 provides that the punishment for attempt may not exceed the punishment for the completed crime; therefore, because the crime of attempted murder is punishable by life imprisonment, Hardy is subject to adult court jurisdiction. Hardy moved to dismiss the indictment on the ground that the adult court lacked jurisdiction. He argued that the crime of attempted murder is identical to the crime of assault with intent to murder, which is punishable by a maximum of thirty-years imprisonment under § 12 of Article 27.

Therefore, according to Hardy, the charge of attempted murder should be treated as a charge of assault with intent to murder, which does not expose a juvenile offender to adult court jurisdiction under § 3 — 804(d)(1) of the Courts Article because it is not punishable by death or life imprisonment. He also argued, in the alternative, that all murder is presumed to be murder in the second degree punishable by a maximum of thirty years. Thus, a charge of attempted murder is tantamount to a charge of attempted second degree murder, and does not fall within § 3-804(d)(1). The Circuit Court agreed with Hardy’s contentions and granted his motion to dismiss the indictment.

The State appealed immediately to the Court of Special Appeals, which reversed and reinstated the indictment. State v. Hardy, 53 Md.App. 313 , 452 A.2d 1299 (1982). We granted certiorari to consider the important question presented. ¹²⁸ I Hardy’s basic contention is that a charge of attempted murder is not punishable by life imprisonment, and is therefore not within § 3-804(d)(1)’s jurisdictional grant. Our first step, therefore, is to ascertain the statutorily prescribed punishment for the crime of attempted murder.

Hardy argues that this step is not as clear cut as it appears, because of the presence of the similar statutorily created crime of assault with intent to murder, which carries its own maximum penalty of thirty-years’ imprisonment. Because the jurisdictional grant in § 3-804(d)(l) is predicated on the maximum sentence allowable for a given offense, we shall compare these two crimes. Maryland has retained the common-law crime of attempt, which is generally defined as the intent to commit a crime coupled with some overt act beyond mere preparation in furtherance of the crime. See, e.g., Lightfoot v. State, 278 Md. 231 , 360 A.2d 426 (1976); Wiley v. State, 237 Md. 560 , 207 A.2d 478 (1965).

Attempt is a common-law misdemean- or, which, prior to 1976, had no statutorily prescribed sentence limit; the sentence for attempt was solely within the discretion of the trial judge. See Mitchell v. State, 82 Md. 527 , 34 A. 246 (1896). In 1976, however, the legislature enacted § 644A of Article 27, which limited the sentence for attempt to the maximum sentence for the completed crime. Assault with intent to murder is a statutory aggravated assault set forth in § 12 of Article 27.

The statute does not define the crime, but we have defined it as an assault upon the victim coupled with an intent to murder, which can be shown by proof that the crime would have been murder if the victim had died. See, e.g., Taylor v. State, 238 Md. 424 , 209 A.2d 595 (1965); Bird v. State, 231 Md. 432 , 190 A.2d 804 (1963). Common-law assault, an element of the crime, has been defined in various ways, but the essence of the crime is “an attempt by force to injure the person of another.” Yantz v. Warden, 210 Md. 343, 351 , 123 A.2d 601, 606 , cert. denied, 352 U.S. 932 , 77 S.Ct. 236 , 1 L.Ed.2d ¹²⁹ 167 (1956); see Taylor v. State, 52 Md.App. 500 , 450 A.2d 1312 (1982), cert. denied, 295 Md. 691 (1983). Because the overt act necessary for an attempt is frequently an assault, the two crimes have a significant overlap.

But the overlap is not complete, because an overt act can qualify as an attempt and yet not rise to the level of an assault. For example, an attempted poisoning would qualify as attempted murder, but it would not be an assault, especially if the poison did not come in contact with the victim. See Bittle v. State, 78 Md. 526 , 28 A. 405 (1894). An aborted attempt to bomb an airplane would not be an assault, but it would be attempted murder.

See People v. Grant, 105 Cal.App.2d 347 , 233 P.2d 660 (1951). Lying in wait can be sufficient to establish attempt, but it would not constitute an assault. A person who fires a shot at an empty bed where he mistakenly believes the victim is sleeping has committed attempted murder, but not an assault. State v. Mitchell, 170 Mo. 633 , 71 S.W. 175 (1902).

If a defendant procures the services of a “feigned accomplice”— someone who pretends to go along with a criminal undertaking — the defendant’s acts in furtherance of the crime may constitute attempted murder, but not assault. See, e.g., State v. Mandel, 78 Ariz. 226 , 278 P.2d 413 (1954); People v. Parrish, 87 Cal.App.2d 853 , 197 P.2d 804 (1948); State v. Gay, 4 Wash.App. 834 , 486 P.2d 341 (1971). Professor Perkins has explained the difference between attempted murder and assault with intent to murder as follows: The so-called “assaults with intent” require special attention in connection with the law of attempt. Assault with intent to murder, assault with intent to rob, assault with intent to rape, and assault with intent to inflict great bodily injury are found quite frequently in the codes.

Others are not uncommon, and sometimes a section provides a special penalty for an assault to commit any felony not otherwise provided for by statute. No more is needed here than a bare reference to what was said above in regard to proximity. Since an attempt ¹³⁰ to commit a battery is an assault, and since every murder includes a battery, logic suggests that every attempted murder includes an attempted battery and hence an assault. If this were true an attempt to commit murder and an assault with intent to commit murder would be merely different ways of expressing the same result.

Logical as this may seem, however, it fails to give a true picture of the common law because of peculiarities in the history of its development. The law of assault crystallizing at a much earlier day than the law of criminal, attempt in general, is much more literal in its requirement of “dangerous proximity to success” (actual or apparent) than is the law in regard to an attempt to commit an offense other than battery. Apart from this, the two are almost identical unless a statute defines assault in terms of “present ability.” Such a statutory provision, as mentioned above, is interpreted to require an actual present ability rather than the common-law requirement of an apparent present ability, and will apply to an aggravated assault the same as to any other. Hence an assault with intent to commit a particular crime is, in general, the same as an attempt to commit that crime except for two additional requirements, — (1) a greater degree of proximity, and (2) actual present ability to commit a battery (the latter being limited chiefly to states in which this has been added by the statutory definition of assault).

R. Perkins, Criminal Law 578 (2d ed. 1969) (footnote omitted). The Model Penal Code’s treatment of inchoate crimes illustrates the wide range of acts that would be sufficient to establish an attempt but would not be assaultive. Section 5.01(2) of the Code lists seven different actions as potential “substantial steps” that can qualify as attempts. These include lying in wait, enticing the victim to go to the planned site of the crime, reconnoitering, unlawful entry, possession of materials and soliciting an agent.

Model Penal Code § 5.01(2) (Proposed Official Draft 1962). None ¹³¹ of these activities involves an assault. Also under the code, a person commits an attempt when he engages in conduct designed to aid another in the commission of a crime, even if the crime is not consummated. Id. § 5.01(3).

The analytical difference between attempted murder and assault with intent to murder is important here because it bears on the issue of whether the enactment of § 12 preempted the common-law crime of attempted murder. Section 12 of Article 27, first enacted in 1809, ch. 138 of the Acts of 1809, now provides in full: Section 12 — Penalties Every person convicted of the crime of an assault with intent to rob, is guilty of a felony and shall be sentenced to imprisonment for not less than two years or more than ten years. Every person convicted of the crime of an assault with intent to murder is guilty of a felony and shall be sentenced to imprisonment for not less than two years nor more than 30 years. Every person convicted of the crime of an assault with intent to commit a rape in any degree or a sexual offense in the first or second degree is guilty of a felor.y and shall be sentenced to imprisonment for not less than two years nor more than 15 years.

In 1976, the Legislature enacted § 644A of Article 27, the only penalty provision dealing with common-law attempt. This statute provides: § 644A — Limitation on Sentence for Attempt The sentence of a person who is convicted of an attempt to commit a crime may not exceed the maximum sentence for the crime attempted. Initially, Hardy’s argument is that the enactment of § 12 preempted the common-law misdemeanor of attempted murder. This contention is plainly wrong.

Maryland courts adhere to the policy that statutes are not to be construed to alter the common-law by implication. Bradshaw v. Prince George’s County, 284 Md. 294 , 396 A.2d 255 (1979); Lutz v. State, 167 Md. 12 , 172 A. 354 (1934). The ¹³² reason for this protection of common-law principles from statutory erosion is based on Article 5 of the Maryland Declaration of Rights, which guarantees to Maryland citizens the common-law of England. Thus, there is a presumption against statutory preemption of the common-law.

This presumption is easily dissipated if the statute expressly overrides a common-law principle. Section 12, however, does not expressly displace the crime of common-law attempted murder, simply because the crime of assault with intent to murder is a different offense. In short, the distinction between the two crimes dispels any inference that the legislature intended to replace the common-law crime with a statutory crime. 3 There is no legislative history pertaining to either § 12 or § 644A. The purpose of § 12, on its face, is to define certain types of assaults and to prescribe penalties for each.

By providing a range of permissible sentences, § 12 limits the trial judge’s sentencing discretion in both directions — he is no longer free to impose a sentence lower than the minimum nor higher than the maximum. The purpose of § 644A, on its face, is to limit the trial judge’s previously unlimited discretion in sentencing for attempts; he can no longer punish an attempt more severely than the completed crime. Although both § 12 and § 644A limit punishment for certain crimes, neither indicates that any particular crime has been abolished. Thus, Hardy’s preemption argument fails.

Nonetheless, Hardy’s argument is that, for the purpose of adult court jurisdiction under § 3-804(d)(l) of the Courts Article, a charge of attempted murder should be treated as a charge of assault with intent to murder. Hardy argues that if the crime of attempted murder is a lesser-included offense of the crime of assault with intent to murder, then ¹³³ it is incongruous for the lesser-included offense of attempted murder to carry a heavier penalty than the greater offense of assault with intent to murder. Hardy states this incongruity in two ways. First, he argues that as a general matter it is unfair and irrational to punish a lesser offense more severely than a greater offense.

Under this rationale, Hardy maintains that the statutory thirty-year limit on the greater offense should also be applied to the lesser offense. Second, he argues that, even if this incongruity is allowed to stand, it should not be permitted in determining adult court jurisdiction under § 3-804(d)(1) because it gives the prosecutor unbridled discretion in choosing between the adult court and the juvenile court in this type of case. The short answer to these contentions is that they are addressed to the wrong forum — the courts cannot rewrite legislation to make an otherwise valid statute more symmetrical. The long answer is that such an incongruity is not uncommon, and it provides no basis for engrafting the sentence limit for one crime onto another crime with its own limit, either as a general matter or as a matter of adult court jurisdiction under § 3-804(d)(l).

Nothing is inherently wrong with creating a greater offense with a lighter penalty than a lesser-included offense with a heavier penalty. A classic example of this is shoplifting as opposed to simple larceny. Under former § 551A of Article 27, 4 felony shoplifting was defined as removing goods or merchandise worth $100 or more from a mercantile establishment with the intent to deprive the owner of the use thereof. Felony larceny under former § 340 of Article 27 was defined judicially as the fraudulent taking and asportation of goods worth $100 or more with the intent to deprive the owner of the use thereof.

State v. Gover, 267 Md. 602 , 298 A.2d 378 (1973). Thus, larceny was a lesser-included offense of shoplifting, but the penalty for ¹³⁴ larceny was a maximum of fifteen years while the maximum penalty for shoplifting was three years. See Slye v. State, 42 Md.App. 520 , 401 A.2d 195 (1979) (for purposes of merger, larceny conviction merged into shoplifting conviction because the former was a lesser-included offense of the latter); Saunders v. State, 8 Md.App. 143 , 258 A.2d 776 (1969) (shoplifting statute did not repeal larceny laws). Another example is false pretenses under former § 140 of Art. 27, which was a lesser-included offense of welfare fraud, but nonetheless