Henry v. State

Smith, J., delivered the opinion of the Court. Petitioner, Tyrone Steven Henry (Henry), was found guilty by a Baltimore City jury of larceny of an automobile and the receipt of $16 in stolen cash. The same jury found him not guilty of the murder of Benjamin Rubin, assault with intent to murder Shirley Rubin, and the armed robbery of Shirley Rubin. The Court of Special Appeals affirmed in Henry v. State, 20 Md. App. 296 , 315 A. 2d 797 (1974).

In granting Henry’s petition for the writ of certiorari we specified “that review [should] be on the questions whether ¹³³ the verdict of guilty as to the first count of Indictment No. 17203163 was invalid, and whether the sentence in each indictment was unconstitutionally imposed.” The challenge to the validity of the verdict of guilty on the first count of Indictment No. 17203163 is founded on two contentions. The first is that the jury rendered inconsistent verdicts when it initially returned a verdict of guilty on the first count (larceny of an automobile) and the third count (larceny of the use or unauthorized use of the same vehicle). Secondly, Henry claims that it was improper to permit that jury to be reassembled, moments after its discharge, and then to render verdicts of guilty on the first count and not guilty on the third count. Further facts relative to the reassembling of the jury will be developed in the process of this opinion.

The Court of Special Appeals resolved these contentions unfavorably to Henry, stating: “We note that the appellant called the judge’s attention to the alleged inconsistency after the jury had been excused. He interposed no objection to the jury’s recall and reconstitution nor to any of the subsequent proceedings. The challenge to the procedure was, therefore, not raised and ruled upon below. We eschew easy reliance upon Maryland Rule 1085, however, because of our belief that even the initial verdicts were not inconsistent.

Unauthorized use is, we hold, a lesser included offense within its parent crime of larceny and, as such, a conviction therefor merges into a conviction for the greater, parent crime.” Id. at 298-99 . The contention relative to sentence, on which the Court of Special Appeals was divided 2-1, is that imposition of consecutive sentences of 15 years for larceny of the automobile and 3 years for receiving stolen goods, the maximum penalty permitted in each instance by statute, was unconstitutional. 1 ¹³⁴ We shall affirm the convictions. On the issue of “whether the verdict of guilty as to the first count of Indictment No. 17203163 was invalid,” however, our reasoning will not follow that of the Court of Special Appeals, since we hold that unauthorized use or larceny of the use is not a “lesser included offense within [the] crime of larceny” and, thus, there was no merger in this case. I Merger or Inconsistent Verdicts Henry was charged with larceny of an automobile and with unauthorized use or larceny of the use of the same vehicle.

These two crimes are covered by Maryland Code (1957, 1971 Repl. Vol.) Art. 27, §§ 348 and 349. The first section, unchanged since 1809, except for the 1918 addition relative to motor vehicles, provides in pertinent part: “Every person convicted of feloniously stealing, taking and carrying away any horse ... or motor vehicle . . . shall restore the horse ... or motor vehicle stolen, to the owner thereof, or shall pay to him the full value thereof, and shall be sentenced to the penitentiary for not less than two nor more than fourteen years.” The history of § 349 was traced by Judge Marked for the Court in Wright v. Sas, 187 Md. 507, 510-11 , 50 A. 2d 809 ¹³⁵ (1947), beginning with its original enactment by Chapter 164 of the Acts of 1880 relative to the larceny of the use of horses or vehicles. It provides in pertinent part: “Any person . . . who shall enter, or being upon the premises of any other person . . . shall, against the will and consent of said person ... or their agents, wilfully take and carry away any horse, ... or cow, or any carriage, ... or any other vehicle including motor vehicle as defined in the laws of this State relating to such, or property whatsoever, or take and carry away out of the custody or use of any person . . . or his . . . agents, any of the above-enumerated property at whatsoever place the same may be found, shall upon conviction thereof ... be adjudged guilty of a misdemeanor, . . . although it may appear from the evidence that such person . . . took and carried away the property or any portion of the same enumerated in this section, for his . . . present use, and not with the intent of appropriating or converting the same. . . .” (Emphasis added.) In Veney v. State, 227 Md. 608 , 177 A. 2d 883 (1962), Judge Prescott reviewed the authorities for the Court, stating that “[d]ecisions and text-writers use various methods and formulae for testing whether one criminal episode merges and extinguishes another, but, when analyzed, they, in general, boil down to the rule” that “if the lesser felony [or offense] is a necessary ingredient of the other, a conviction of one will bar a prosecution for the other . . .” To like effect see Green v. State, 243 Md. 75, 80-81 , 220 A. 2d 131 (1966), and Bennett v. State, 229 Md. 208 , 182 A. 2d 815 (1962).

This case is controlled by the holdings in Veney and Ballard v. State, 236 Md. 579 , 204 A. 2d 672 (1964). In Ballard , as Judge Horney put it for the Court: “Robert Ballard and Glenn Lewis were jointly charged in a three-count indictment with the larceny, receiving and unauthorized use of an automobile. Lewis pled guilty to the unauthorized ¹³⁶ use of it, and Ballard was convicted of the larceny thereof on the uncorroborated testimony of Lewis. The critical question presented on this appeal is whether Lewis was an accomplice of Ballard.” Id. at 580 .

A motion for judgment of acquittal was made by Ballard “based on the theory that the codefendant Lewis was an accomplice and that there was no corroboration of his testimony.” Accordingly, the Court was placed squarely in the position of having to determine “[wjhether or not Lewis (who pled guilty of unauthorized use) was an accomplice of Ballard,” which determination “depend[ed] on whether Lewis could have been punished for the crime of larceny for which both were indicted.” This Court held that he could not, stating: “No cases were cited to us, nor have we found any, holding that one who is guilty of the unauthorized use of a motor vehicle may also be said to have been a participant in the larceny of the same vehicle. On the contrary, the cases in this state as well as those in other states recognize that the two offenses are separate and distinct and that one cannot be convicted of both larceny and unauthorized use. See Fletcher v. State, 231 Md. 190 , 189 A. 2d 641 (1963); Anello v. State, 201 Md. 164 , 93 A. 2d 71 (1952); People v. Ramistella, [ 306 N. Y. 379, 385 ,] 118 N.E.2d 566 (1954); People v. Tellez, [ 32 Cal.App.2d 217, 219 ,] 89 P. 2d 451 (1939); Eastway v. State, [ 189 Wis. 56, 58 ,] 206 N. W. 879 (1926). See also 8A Blashfield, Cyclopedia of Automobile Law and Practice, § 5612.” Id. at 581-82.

Similar views are found in McCarson v. State, 8 Md. App. 20 , 257 A. 2d 471 (1969); Ashby v. State, 24 Ala. App. 466, 467 , 136 So. 483 (1931); State v. Corrolla, 113 Conn. 103 , 154 A. 152, 153 (1931); Sandoval v. People, 176 Colo. 414 , 490 P. 2d 1298 (1971); Leap v. State, 189 Ind. 538 , 127 N. E. 274 (1920); and Slater v. Commonwealth, 179 Va. 264, 267 , 18 S.E.2d 909 ¹³⁷ (1942). See also Annot., 9 A.L.R.3d 633 (1966). As a matter of fact, in McCarson Judge Orth said in a footnote for the Court of Special Appeals: “[A] conviction of larceny of an automobile is inconsistent with a conviction of unauthorized use of that automobile.

An element of larceny of an automobile is the intent to deprive the owner of his property permanently while as to unauthorized use the intent is to deprive the owner of his custody or use of his property temporarily without intent to steal it. Anderson v. State, 3 Md. App. 85 ; Johnson v. State, 2 Md. App. 486 . It is patent that an automobile cannot be taken with the intent both to steal it and not to steal it.” Id. at 22. The reasoning behind these holdings is well expressed in Sandoval where the Colorado court said: “From the foregoing discussion, it appears clear that an essential element of the crime of theft is the formation of an intent to permanently deprive the owner of his property.

On the other hand, the crime of joyriding requires as an element of proof an intent to just temporarily deprive the owner of his property. The intent to permanently deprive is not a progression of an intent to temporarily deprive. To state it another way, the joyriding intent does not mature into the theft intent. A culprit who takes the automobile of another has either the intent to permanently deprive or the intent to temporarily deprive.

He cannot have both intents because the one is exclusive of the other. Therefore, it follows that the greater offense of theft of an automobile does not include the element of intent to temporarily deprive. Under the rule of [People v.] Futamata, [ 140 Colo. 233 , 343 P. 2d 1058 (1959)], before an offense can be classified as a lesser included offense of a greater crime, the establishment of the greater must also necessarily establish all the elements required to prove the ¹³⁸ lesser. As a consequence, it must be concluded that joyriding is not a lesser included offense of theft, nor is an attempt to commit joyriding a lesser included offense of attempted theft.” Id. at 418.

(Emphasis in original.) Accordingly, the Court of Special Appeals erred in concluding that the offense of larceny of use merged into the crime of larceny and that this would dispose of the contentions relative to the reassembling of the jury. II The Reassembling of the Jury Indictment No. 17203163 was the one which contained the counts relative to larceny and unauthorized use. It is obvious that the jury was somewhat confused on this since the record reflects that when the verdict of guilty on the first count was announced the trial judge twice asked whether this meant the verdict was not guilty on the remaining two counts. The verdict was finally recorded as guilty on the third count, but not guilty on the second count.

After the jury was polled as to its verdict on another indictment and harkened to the verdict on Indictment 17203157, containing the count of receiving stolen goods, and the verdict on Indictment 17203163, the jury was dismissed by the trial judge with thanks. Then the record reflects the following: (Thereupon, at 6:30 P.M., the jury was excused.) THE COURT: Mr. Baker? MR. BAKER: Well, I believe the verdicts as to Indictment 3163 are inconsistent.

THE COURT: Well, we’ll bring the jury back if you’re going to claim they’re inconsistent. Let’s bring the jury back. You mean the larceny of the automobile? MR.

BAKER: May we approach the bench? THE COURT: Yes. (OFF RECORD BENCH CONFERENCE) ¹³⁹ THE COURT: Is the jury out there? We’ll have to bring them back.

(Thereupon, at 6:32 P.M., the jury resumed the jury box.) THE COURT: Members of the jury, I’ll have to ask you to take your seats again, please. Members of the jury, I regret to have to ask you to do this. I’m going to ask you to go back to your jury room and consider Indictment 3163 in which you found the defendant guilty on the first count of stealing a car, not guilty of receiving stolen goods, and guilty on the third count of the indictment. I’m going to ask you to go back to your jury room and consider and make a choice between the first count and the third count of that indictment.

(Thereupon, at 6:33 P.M., the jury retired to the jury room for further deliberation.) (Thereupon, at 6:35 P.M., the jury resumed the jury box.) The jury then returned a verdict of guilty of larceny, the first count in the indictment, and not guilty of unauthorized use, the third count in the indictment. Henry contends that this procedure was improper. The short answer to this contention is that Maryland Rule 885 (as does its counterpart applicable to the Court of Special Appeals, Rule 1085) provides that the “Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court.” As the Court of Special Appeals said, no objection was raised by or on behalf of Henry as to the procedure followed. Rules 885 and 1085 are applicable to criminal cases as well as to civil cases.

Brice v. State, 254 Md. 655, 661-62 , 255 A. 2d 28 (1969); Rose v. State, 240 Md. 65, 69 , 212 A. 2d 742 (1965); and Kares v. State, 215 Md. 396, 398 , 137 A. 2d 712 (1958). The point not having been raised below, it is deemed to have been waived. Hardesty v. State, 223 Md. 559, 562 , 165 A. 2d 761 (1960). The argument of Henry that this matter comes within the exception ¹⁴⁰ contained in the rule, since it pertains to jurisdiction, is without merit.

The rule provides that it is “a question as to the jurisdiction of the [trial] court [which] may be raised and decided in this Court whether or not raised and decided in the [trial] court.” The point here in no way involves the jurisdiction of the trial court. Ill The Sentence The trial judge sentenced Henry to serve 15 years on the larceny charge and 3 years on the receiving stolen goods charge, the sentences to run consecutively. It is contended by Henry that “the bases used by the trial judge in imposing maximum consecutive sentences in these cases were in violation of appellant’s rights under the due process clause of the 14th amendment of the United States Constitution.” This claim is based upon the language the trial judge used in passing sentence. The same jury which found Henry guilty of larceny of the automobile and of the receipt of $16 in stolen cash acquitted him of the murder of Benjamin Rubin, the assault with intent to murder Shirley Rubin, and the armed robbery of Shirley Rubin.

Two associates of Henry were separately tried and convicted of murder in the first degree. The trial judge said in passing sentence: THE COURT: The remarks that I am about to make are not intended as a criticism of the jury’s verdict in this case, to do so would be for naught at this stage of the proceedings although I will say I certainly do feel entirely different when they return a verdict of guilty of murder and armed robbery. The remarks that I am about to make are merely to set forth on the record the reasons that I am imposing the sentence that I will in a few moments, and to make known to a panel of Judges who may have to review the sentence if the Defendant decides to file a petition for review of sentence. ¹⁴¹ It appears to me that if this Defendant had not stolen the car from the parking lot of the Baltimore Community College and hot wired it, Mr. Benjamin Rubin possibly would have been alive today. If this Defendant had not stolen the car and picked up his two companions, Mr. Benjamin Rubin possibly would have been alive today.

I consider this Defendant the commander of the troops and the pilot of the automobile. The record is clear that the other two defendants were not familiar with the neighborhood or the locality where the grocery store was situated, or indeed were they familiar with the grocery store, nor did they know the victim in this case; but it was the Defendant who was the pilot of this automobile, and being familiar with that locality and the store and the Rubins, whom he had known for many years, it was he who masterminded and engineered the holdup. I will say although perhaps the ensuing murder was not anticipated by him or the others wdro may have been involved after riding around in that car to various parts of the city for no good reason at all with two companions, one of whom was armed. It was he — the Defendant — who brought the car and the companion to this locality the first time ostensibly to permit the two to buy one pack of cigarettes with two persons making that purchase.

After being in that store and returning to the car, it was he, the driver of the car, who was in full control of the movement of that car and the destination of that automobile that subsequently returned to the locality and the same grocery store ostensibly to permit his companions to buy a can of soft drink and in the course of this robbery Mr. Rubin was killed unnecessarily, and Mrs. Rubin was seriously injured unnecessarily. Not only was he familiar with the locality of the store, the people involved, and being in full control of the movement of the car; but in addition thereon after having seen the robbery and after these two persons came back ¹⁴² to his car he profited by the armed robbery to the extent that it developed in the course of the testimony. So, here is a man stealing a car and taking his companions to the locality and an armed robbery having been perpetrated and he profiting from the loot of the armed robbery. It is indicated to me very clearly he not only actively participated in the robbery and the ensuing murder, but he indeed could have prevented it by not taking these two persons to the locality, and against all this evidence there appears the bald, naive statement of this statement [sic] that he did not know that the robbery was about to be perpetrated.

It is for these reasons now that under Indictment No. 3163, the sentence is a term of fifteen (15) years imprisonment . . . dated from April 20, 1972; and as to Indictment No. 3157, the sentence is a term of three (3) years imprisonment, dated from April 20, 1972, . . . and that sentence is to run consecutive to the fifteen (15) year sentence in Indictment No. 3163. A review panel composed of Judges James W. Murphy, Solomon Liss, and Joseph C. Howard, Chairman, acting under the provisions of what was then Code (1957, 1973 Repl. Vol.) Art. 26, §§ 132-138 (now Code (1957, 1973 Additional Supp.) Art. 27, §§ 645JA-645JG) and Rule 762, left the sentence unchanged. Henry’s version of the occurrences of April 19, 1972, as reflected in the statement of facts printed in his brief