Johnson v. State

ADKINS, Judge. On October 29,1981, Osborne Holland was the recipient of both good and bad news. The good news was in the form of a $900 winning lottery ticket that he had cashed in that morning. The bad, almost tragic, news was conveyed to him that afternoon, when a man entered the laundromat which Holland managed, and announced: “This is a stickup.

Give me your money, old man.” As Holland was reaching for the money, the intruder shot him four times and fled the scene. The entire incident lasted only a few seconds. Fortunately, Holland survived. In due course, appellant Ronald “Twins” Johnson was charged as a result of this incident.

So far as is pertinent to this appeal, he was accused in one indictment of attempted robbery with a dangerous or deadly weapon (Art. 27, § 488), assault with intent to rob (Art. 27, § 12), common law assault, and use of a handgun in the commission of a crime of violence (Art. 27, § 36B(d)). In a second indictment he was accused of assault with intent to murder (Art. 27, § 12), common law assault, and use of a handgun in a crime of violence (Art. 27, § 36B(d)). A jury sitting in what is now the Circuit Court for Baltimore City (Karwacki, J. presiding) convicted Johnson of attempted armed robbery, assault with intent to murder, and the two handgun violations. Judge Karwacki sentenced him to imprisonment for twenty years on the first conviction, thirty years on the second, and fifteen years on each ²¹⁰ handgun conviction, all to run consecutively, for a total of eighty years.

On appeal, Johnson presents six questions which we shall consider in the following order, discussing additional facts as necessary: 1. Was appellant improperly convicted and sentenced for both assault with intent to murder and attempted armed robbery? 2. Did appellant’s separate convictions and sentences for two simultaneously occurring handgun use offenses constitute impermissible double punishment? 3. Did the trial court erroneously refuse to suppress appellant’s in-court identification? 4.

Was the evidence sufficient to sustain appellant’s convictions? 5. Did the trial court err prejudicially in instructing the jury that the testimony of a single eyewitness was sufficient to sustain appellant’s convictions? 6. Was appellant denied due process of law as a result of the State’s suppression of material evidence favorable to his case? Convictions and Sentences for Both Assault with Intent to Murder and Attempted Armed Robbery Johnson’s contentions on this issue are two-fold.

First, he says that under the required evidence test, Brooks v. State, 284 Md. 416 , 397 A.2d 596 (1979), his convictions of assault with intent to murder and attempted armed robbery should merge. Second, he claims that where “an assault is committed in furtherance of, and incidental to, an attempted robbery, the Legislature did not intend that separate sentences be imposed for both attempted armed robbery and assault with intent to murder.” This is so, he argues, because the imposition of separate and consecutive sentences for these two convictions amounts to “piling punishment upon punishment” and is prohibited by “[fundamental fairness.... ” ²¹¹ Loscomb v. State, 45 Md.App. 598, 613 , 416 A.2d 1276 (1980); aff’d. sub nom. State v. Loscomb, 291 Md. 424 , 435 A.2d 764 (1982). On the first point, in Maryland the test for determining whether “two offenses arising from the same transaction are to be treated as one” for merger purposes is the required evidence test.

Brooks v. State, supra, 284 Md. at 419 , 397 A.2d 596 . “Under this test, if each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge.” Id. at 418, 397 A.2d 596 . “However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.” Newton v. State, 280 Md. 260, 268 , 373 A.2d 262 (1977). In Johnson’s view, the intent aspect of assault with intent to murder is not an element of that offense, but merely a factor that subjects the defendant to a statutory penalty of up to thirty years in prison. Since both assault with intent to murder and attempted armed robbery require an assault, he contends the offenses merge because only the latter includes an intent element (the intent to rob). He is wrong.

In order to convict a defendant of assault with intent to murder, there must be proof that the assault was indeed committed with intent to murder. Bird v. State, 231 Md. 432, 436 , 190 A.2d 804 (1963). “The principal element of the offense is intent.. .. ” R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure § 3.5 (1983). Therefore, since each of the offenses under consideration requires proof of a fact the other does not, they are not considered the same and do not merge. 1 ²¹² Recognizing the weakness of his first argument, Johnson presents a second line of defense by invoking the so-called “Rule of Lenity.” That rule may operate even when, as here, offenses are separate and distinct for purposes of the required evidence test. It is based on the notion that “although the required evidence test is the normal standard for deciding the allowability of separate sentences, the Legislature may not intend in certain circumstances that separate sentences be imposed for two offenses growing out of the same transaction, even though the two offenses are clearly distinct under the required evidence test.” Whack v. State, 288 Md. 137, 143 , 416 A.2d 265 (1980).

See also Missouri v. Hunter,- U.S. -, 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983). Fields v. State, 50 Md.App. 717, 719-20 , 439 A.2d 1121 (1982). As the cases cited make clear, the application of this doctrine is dependent upon legislative intent — whether “the Legislature [did or] 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.” Brooks v. State, supra, 284 Md. at 423 , 397 A.2d 596 . With his usual lucidity, Judge Moylan explained the operation of the rule in Walker v. State, 53 Md.App. 171, 201 , 452 A.2d 1234 (1982): If the Legislature intended two crimes arising out of a single act to be punished separately, we defer to that legislated choice. ...

If the Legislature intended but a single punishment, we defer to that legislated choice. If we are uncertain as to what the Legislature intended, we turn to the so-called ‘Rule of Lenity’ by which we give the defendant the benefit of the doubt [citations omitted]. But on the facts of this case, we do not think it appropriate to apply the Rule of Lenity. An examination of typical cases in which the Rule has been considered will explain our conclusion.

In Ladner v. United States, 358 U.S. 169 , 79 S.Ct. 209 , 3 L.Ed.2d 199 (1958), Ladner had wounded two federal officers ²¹³ by a single shotgun blast. He was convicted under 18 U.S.C. (1940 ed.) § 254 (now 18 U.S.C. § 111 ) of two separate assaults, and received consecutive sentences. The Supreme Court saw the issue as whether, in enacting the statute, Congress intended that a single shotgun discharge would constitute a single assault, regardless of the number of those injured thereby, or whether Congress intended to create a separate and distinct offense for each federal officer harmed.

Finding the language of the statute ambiguous and its legislative history unenlightening, the Supreme Court adopted “the less harsh meaning,” 358 U.S. at 177 , 79 S.Ct. at 213 , and held that multiple convictions and sentences were not intended. A similar question was decided in a similar fashion in Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955) in which Bell was charged with simultaneously transporting two women across state lines in violation of the Mann Act, 18 U.S.C. § 2421 and in which he was convicted for two violations of that law, and received consecutive sentences. A slightly different factual pattern emerged in Prince v. United States, 352 U.S. 322 , 77 S.Ct. 403 , 1 L.Ed.2d 370 (1957). There, the question was whether Congress intended to permit multiple punishments for a single transaction which resulted in convictions of unlawful entry into a bank with intent to rob, and of bank robbery, both in violation of the Federal Bank Robbery Act, 18 U.S.C. § 2113 .

Observing that Congress had specified no separate penalty for unlawful entry, but had merely imposed a penalty for bank robbery, the court applied the Rule of Lenity, although it recognized that “reasonable minds might differ” as to its view of legislative intent. 352 U.S. at 329 , 77 S.Ct. at 407 . Compare Simpson v. United States, 435 U.S. 6, 12 , 98 S.Ct. 909, 913 , 55 L.Ed.2d 70 (1978). Yet another variation appeared in our Loscomb v. State, supra. As a result of a single automobile accident in which the occupants of one car were killed, Loscomb was convicted of and sentenced for violation of both Art. 27, § 388 (manslaughter by motor vehicle) and § 388A (homicide by motor ²¹⁴ vehicle while intoxicated).

Observing that “it is manifestly impossible to kill or slay one person twice,” 45 Md.App. at 613 , 416 A.2d 1276 , Chief Judge Gilbert, writing for the court, concluded that “conviction of both charges, arising from the slaying of the same person” was impermissible “piling punishment on punishment.” Id. In a somewhat similar vein, in Fields v. State, supra, we held that convictions and consecutive sentences for violation of Art. 27, § 33 (storehouse breaking and stealing) and Art. 27, § 33A (storehouse breaking with intent to steal) merged when both were based on the same transaction. Recognizing that the two crimes were distinct under the required evidence test, Judge Lowe nevertheless reasoned that the Legislature did not intend the two offenses to be separately punished when a “theft accomplished .. . coincides with an intended theft, according to the pecuniary range provided by these statutes.. .. ” 50 Md.App. at 721 , 439 A.2d 1121 . And in Walker, supra, we applied the Rule of Lenity because we were “aware of no indications that the Legislature intended an assault which is also the overt act of an attempt [to rape] to be punished separately from that attempt.” 53 Md.App. at 201 , 452 A.2d 1234 .

In each of the cases from Ladner through Walker , the Rule of Lenity or its functional equivalent was applied in the absence of any indication of legislative intention to authorize multiple punishment for a conviction based on a single transaction. The opposite side of the coin is exemplified by Whack v. State, supra. There, Whack was convicted of and sentenced for robbery with a deadly weapon and use of a handgun in the commission of the same robbery. Reviewing legislative history, the Court of Appeals concluded that it “was clear ... that the General Assembly intended to authorize the imposition of punishment under both § 36B(d) [use of a handgun] and § 488 [robbery with a deadly weapon] when one commits a robbery with a handgun.” 288 Md. at 149 , 416 A.2d 265 .

It declined to apply the Rule of Lenity, reasoning that when the legislature “expressly shows an intent to punish, under two separate statu ²¹⁵ tory provisions, conduct involving . . . aggravating factors, the Fifth Amendment’s double jeopardy prohibition has not heretofore been regarded as a bar.” Id. at 150 , 416 A.2d 265 . See also Missouri v. Hunter, supra. A common thread connects all the cases we have just discussed. It is the assumption (often not articulated) that under the circumstances of a given case, it is reasonable to believe that the legislature that enacted a particular statute or statutes would express some intent as to multiple punishment.

That assumption is appropriate when a single act is charged as multiple offenses under a single statute (Ladner, Bell and Prince), where the subject of two statutes is of necessity closely intertwined (Loscomb and Fields), where one offense is necessarily the overt act of a statutory offense (Walker), and where one statute, by its very nature, affects other offenses because it is designed to effect multiple punishment (Whack). Under those circumstances, it is not unreasonable to assume that the legislative body contemplated the possibility of multiple punishment and to conclude that unless the intention in favor of multiple punishment is clear, as in Whack , the Rule of Lenity or its equivalent should be applied against the imposition of multiple punishment. But that thread is not present in the case at bar. What is now Art. 27, § 12 (assault with intent to murder) was enacted by Ch. 138, Laws of 1809, as part of an early codification of Maryland criminal law.

That codification did not include the offense of attempted robbery with a dangerous or deadly weapon (now Art. 27, § 488) which did not become part of our statutory law until enacted by Ch. 457, Acts of 1927. Not only were these two statutory offenses created 118 years apart but there is no evidence that the legislature ever considered one when amending the other, nor was there reason for it to do so. An assault with intent to murder may be and often is committed under circumstances showing no intent to rob; attempted armed robbery may be and often is committed under circumstances not involving the intent to kill. One offense is not necessarily ²¹⁶ the overt