Lewis v. State

Eldridge, J., delivered the opinion of the Court. ⁷⁰⁷ The defendant in this criminal case, Lon Alec Lewis, was convicted as an accessory before the fact to the first degree murder of his wife and the second degree murder of his child. He was also convicted on two counts of solicitation to murder and three counts of conspiracy to murder. Several significant legal issues were raised on his appeal to the Court of Special Appeals. We issued a writ of certiorari prior to any proceedings in the intermediate appellate court.

The prosecution’s evidence showed that the defendant Lewis arrived at an agreement with a friend, Gene Meyer, whereby Meyer would kill the defendant’s wife and infant daughter in exchange for a payment of $3,000.00. In addition, Lewis agreed to kill Meyer’s wife and was to be compensated for that act. On September 23,1977, Lewis returned home in the evening to find the dead bodies of his wife and daughter lying in a pool of blood on the kitchen floor. The police were summoned to the home, and an investigation commenced.

As the result of a search of the defendant’s home several days after the crimes, a poem was found, suggesting to the police the possibility of the defendant’s involvement in the killings. Upon intensive questioning, the defendant ultimately confessed to his role in the murders. After his conviction by a jury in the Circuit Court for Prince George’s County, Lewis was sentenced to life imprisonment on the first degree murder count, a consecutive thirty-year term on the second degree murder conviction, concurrent twenty-year terms on the solicitation to murder counts, and a concurrent ten-year term on each of the conspiracy charges. The defendant’s principal contentions on appeal are that: (1) An accessory before the fact cannot be tried prior to the conviction and sentencing of the principal.

(2) A delay in presentment to a judicial officer following arrest violated Maryland District Rule 723 a. (3) The State violated his Fourth Amendment rights in searching his house without obtaining either valid consent or a warrant. (4) He was coerced into confessing in violation of his ⁷⁰⁸ Fifth Amendment right against compulsory self-incrimination. (5) Under both double jeopardy principles and Maryland merger law, one cannot be convicted and sentenced for solicitation to murder where he is also convicted and sentenced on a charge of being an accessory before the fact to the same murder.

(6) An instruction to the jury, directing it that all of the other instructions are only advisory, and not mandatory, was erroneous under the circumstances here. I. At the trial, in the course of his argument upon a motion for judgment of acquittal, Lewis’s counsel contended that the State had failed to adduce proof that “there was a guilty principal ... and that he was convicted. This is an essential element of accessory before the fact.” The prosecuting attorney conceded that “technically we do not have a conviction as to Mr. Meyer. He is not truly convicted until he is sentenced.

And then it becomes a conviction.” There was no formal proof during Lewis’s trial that the principal in the two murders involved, Gene Meyer, had been tried. However, it appears to be undisputed that he was tried and verdicts of guilty had been rendered prior to Lewis’s trial. On the other hand, it is clear that the principal was not sentenced until after Lewis was tried and found guilty. In this Court, Lewis reiterates his contention that his two murder convictions were improper because, under the common law rule in force in this State, an accessory cannot be tried before a final judgment in the principal’s case, which means a verdict of guilty and sentence upon that verdict.

The State, at the outset, concedes that the defendant correctly sets forth the strict common law requirement concerning the trial of accessories. Referring to the “hypertechnical nature of the common-law requirement” and asserting that the common law rules on accessoryship “have become legal anachronisms which should be brought into line ⁷⁰⁹ with the realities of the administration of criminal justice today,” the State advances three alternate positions. Broadly, it argues that we should abolish the distinction between principals and accessories before the fact and “concomitantly dispense with the hypertechnical rules incident thereto.” As a middle ground, the State contends that mere evidence of the principal’s guilt should be sufficient to permit the conviction of the accessory. The State’s narrow position is that, at the very least, we should hold that a verdict of guilty returned against a principal is all that is needed before an accessory can be tried, and that a final judgment in the principal’s trial is not required.

Just last year, we pointed out in State v. Ward, 284 Md. 189, 191 , 396 A.2d 1041 (1978): “Maryland is one of the few, if not the only state, which has retained this doctrine [of accessoryship applicable to felonies] in virtually the same form as it existed at the time of William Blackstone in the 18th century, and it represents the law of Maryland at the present time.” We further observed in Ward that England and every American jurisdiction except Maryland had abolished or modified the-doctrine by legislative act, 284 Md. at 191 n. 3. Apparently no jurisdiction has done so by judicial decision absent any type of legislative basis. Under orthodox common law principles, not modified by statute, it is clear that a final judgment of conviction in the principal’s case, which includes sentence of the principal, is an absolute prerequisite to trial of an accessory. In fact, an accessory could not even be arraigned until the attainder of the principal, which followed the final judgment. 1 As stated in Blackstone, Commentaries on the Law of England, p. 232 (1st ed. 1769), quoted by Judge Orth for the court in State v. Magliano, 7 Md. App. 286, 296 , 255 A.2d 470 (1969): “ ‘By the old common law the accessary could not be arraigned till the principal was attainted, unless ⁷¹⁰ he chose it: for he might waive the benefit of the law; and therefore principal and accessary might, and may still, be arraigned and plead, and also be tried together.

But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessary in any of these cases could not be arraigned; for non constitit whether any felony was committed or no, till the principal was attainted; ..” And as set forth in 1 Hale's Pleas of the Crown, pp. 623-624 (1st American ed. 1847): “If A. B. and C. be indicted as principals, and D. is indicted as accessary to them all, D. shall not be arraigned till all the principals be attaint or outlawed---- “If the principal be attainted and hath his clergy, or be pardoned after attainder, the accessary shall be put to answer; but if the principal be only convict and hath his clergy, or be pardoned, or stand mute, or die in prison before judgment ... the accessary shall not be put to answer, for the principal was never attainted....” See also 1 J.Bishop, Bishop on Criminal Law, p. 483 (9th ed. 1923); 3 J.Bishop, Bishop's New Criminal Procedure, pp. 1228-1229 (2d ed. 1906); 1 Encyclopaedia of the Laws of England, p. 84 (2d ed. 1906); Foster, A Report of Some Proceedings, 362-363 (1762); 1 E.McClain, The Criminal Law, p. 180 (1897); R.Perkins, Perkins on Criminal Law, p. 673 (2d ed. 1969); 2 J.F.Stephen, A History of the Criminal Law of England, p. 235 (1883). Courts also have recognized the common law principle that an accessory cannot be tried until final judgment of conviction in the principal’s case. E.g., Daughtrey v. State, 46 Fla. 109 , ⁷¹¹ 35 So. 397 , 398 (1903); Ex-parte Mack Bowen, Habeas Corpus, 25 Fla. 214, 221 (1889); Simmons v. Georgia, 4 Ga. 465, 471 (1848); Baron v. The People, 1 Parker Cr. R. 246, 250 (N.Y. 1851); State v. Duncan, 28 N.C.

(6 Ired.) 98, 104-105 (1845); Commonwealth v. Minnich, 250 Pa. 363 , 95 A. 565, 567 (1915); State v. Sims, 18 S.C.L. (2 Bailey) 29, 31 (1830); Kingsbury v. State, 37 Tex. Crim. 259, 266 , 39 S.W. 365 (1897). Contra, Jones v. The People, 20 Hun (N.Y. Sup.

Ct.) 545 (1880). In State v. Duncan, supra, the defendant was indicted as an accessory before the fact to murder. Prior to the trial of the defendant, the principal had been tried and found guilty by a jury, but had not yet been sentenced. At the accessory’s trial, the conviction of the principal was admitted into evidence over the defendant’s objection that such evidence was improper because judgment had not been entered on the verdict.

On appeal the Supreme Court of North Carolina agreed with this position and reversed the conviction, declaring: “Where the trials [of a principal and accessory] are separate, the attainder of the principal must precede not only the sentence of the accessory, but his trial.” As a basis for its holding the court quoted Lord Coke, 4 Rep. 43: “ ‘That, if principal and accessory are, and the principal pardoned, or has his clergy, the accessory cannot be arraigned, for the maxim of the law is — ubi factum nullum, ibi fortia nulla; et ubi non est principalis, non potest esse accessorius. Then, before it appears there is a principal, one cannot be charged as accessory. But none can be called principal, before he is so proved and adjudged by the law, and that ought to be by judgment upon verdict or confession, or by outlawry; for it is not sufficient that, in rei veritate, there was a principal, unless it so appears by judgment of the law; and that is the reason that, when the principal is pardoned, or takes his clergy, before judgment, the accessory shall never be arraigned; for it doth not appear, by judgment of law, that he is principal, and the acceptance of the pardon or praying of the clergy, is an argument, but no judgment in law, that he is guilty. But if the ⁷¹² principal, after attainder, is pardoned, or has his clergy, then the accessory shall be arraigned, because it appears judicially that he was principal.’ ” 28 N.C. at 103-104 .

Expressing its displeasure with the state of the law, the Supreme Court of North Carolina noted that other jurisdictions had enacted legislation to avoid this impediment to justice. However, the court refused to judicially change the law, declaring ( 28 N.C. at 106 ): “Probably similar reforms may be found by the Legislature, to be necessary in our law____But the Courts cannot deny to ... [accessories] the benefit of the law, as it was anciently settled, until it shall be altered by the Legislature.” The Supreme Court of Pennsylvania in Commonwealth v. Minnich, supra, was also faced with the identical issue as that now before us. There, the defendant was placed on trial as an accessory before the fact to murder, after the rendition of a guilty verdict against the principal but before sentence was imposed upon him. Applying the common law rule that an accessory cannot be tried until the principal has been convicted, the court was of the view that a jury verdict in and of itself is not a conviction as this term was used within the rule.

The court reasoned that although the word conviction, as popularly understood, connotes simply a jury’s verdict, a different, technical meaning was attributed to the word at common law. The appropriate definition of the word “conviction” was set forth as “the ascertainment of the guilt of the accused and judgment thereon by the court, implying not only a verdict but judgment or sentence thereon.” 95 A. at 566-567 . Thus, there being no sentence of the principal prior to the defendant’s trial, the Pennsylvania court reversed the conviction and remanded for a new trial. In State v. Magliano, supra, 7 Md. App. at 293-298 , the defendant, charged with being an accessory after the fact, obtained a dismissal of the indictment on the ground that the principal, although having been indicted, died before he was convicted, In affirming the dismissal, the Oeurt of Special ⁷¹³ Appeals, in an opinion by Judge Orth, pointed out that the common law rule had its genesis in a thirteenth century statute, Anno quarto Edwardi/(1276), pp. 113-114, providing that an accessory shall be kept until the principal is attainted, and that this statute was determined, in Kilty’s Report of the Statutes (1811), to be incorporated in Maryland law. 2 See also State v. Ward, supra, 284 Md. at 201-202 (stating the common law rule); Randall v. Warden, 208 Md. 667 , 119 A.2d 712 (1956) (also recognizing the common law rule but holding that it did not avail the accessory as he had consented to be tried before the principal); West v. State, 3 Md. App. 662, 665 , 240 A.2d 653 (1968).

In light of the above, there can be no doubt that under the law as it existed at the time the defendant Lewis was tried, his trial was improper because the principal Meyer had not been sentenced. Even if we are inclined to now abolish or modify this procedural rule, as urged by the State, such modification should in our judgment be given only prospective effect. Although it might not violate constitutional requirements to now modify the common law rule and apply such change retroactively to validate the defendant’s unlawful trial, to do so may, in our view, impinge upon basic fairness. Compare Dobbert v. Florida, 432 U.S. 282 , 97 S. Ct. 2290 , 53 L. Ed. 2d 344 (1977), reh. denied, 434 U.S. 882 , 98 S. Ct. 246 , 54 L. Ed. 2d 166 (1977); Marks v. United States, 430 U.S. 188 , 97 S. Ct. 990 , 51 L. Ed. 2d 260 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-354 , 84 S. Ct. 1697 , 12 L. Ed. 2d 894 (1964); United States v. Rundle, 383 F.2d 421, 425-427 (3d Cir. 1967), cert. denied sub nom.

Almeida v. Rundle, 393 U.S. 863 , 89 S. Ct. 144 , 21 L. Ed. 2d 130 (1968); State v. Moyer, 387 A.2d 194 (Del. 1978); Art. 17 of the Maryland Declaration of Rights. See also State v. Hicks, 285 Md. 310, 334 , 403 A.2d 356 (1979); Wiggins v. State, 275 Md. 689, 717 , 344 A.2d 80, 95 (1975), and cases therein discussed. ⁷¹⁴ Since the principal Meyer has now been sentenced, the common law rule governing the sequence of the trials would in no way preclude a trial of the defendant Lewis at this time. Consequently, our reversal of Lewis’s conviction will be accompanied by a direction for a new trial. State v. Duncan, supra, 28 N.C. at 107 ; Commonwealth v. Minnich, supra, 95 A. at 568 . 3 Although the application of the common law rule in this case necessitates a reversal only with respect to the murder counts, because the lesser counts are interrelated and may involve questions of possible merger, upon remand the new trial shall be as to all counts on which the defendant was convicted.

See Maryland Rules 871 a and 874 a. On the other hand, we agree with the State that we should now change the technical common law procedural rule mandating that an accessory cannot be tried before the principal is sentenced. The fact that this rule became part of the law of Maryland in 1776 does not preclude such change. Recently in Pope v. State, 284 Md. 309, 334 , 396 A.2d 1054 (1979), we assumed that misprision of felony was a common law crime and that it became part of this state’s law in 1776, but we held that it no longer exists in Maryland, stating “that the common law is subject to change.” 284 Md. at 341.

As it ⁷¹⁵ is often said, “the common law is not static but adopts itself to changing conditions and increasing knowledge.” Latz v. Latza/k/a Schafer, 10 Md. App. 720, 731 , 272 A.2d 435 (1971), quoting Maryland to use of Weaver v. O’Brien, 140 F. Supp. 306, 311 (D. Md. 1956). This Court went on to say in Pope v. State, supra, 284 Md. at 341-342: “[The common law] may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides. ... It may also be changed by judicial decision. ... We asserted in Ass’n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204 , 82 A.2d 106 (1951): ‘We have frequently held that it is our duty to determine the common law as it exists in this State....’ The doctrine of stare decisis does not preclude the exercise of this duty.

We declared in White v. King, 244 Md. 348, 354 , 223 A.2d 763 (1966): ‘The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life.’ Accord, Hearst Corp. v. St. Dep’t of A. & T, 269 Md. 625, 643-644 , 308 A.2d 679 (1973).” In our view, the common law rule precluding trial of an accessory until the principal is sentenced “has become unsound in the circumstances of modern life,” id. at 342, and therefore should be changed. In State v. Ward, supra, 284 Md. at 192, we pointed out that the technical procedural rules accompanying the common law doctrine of accessoryship are illogical and “ ‘shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance.’ ” And as Judge Levine observed in his concurring opinion in State v. Williamson, 282 Md. 100, 113 , 382 A.2d 588 (1978), these procedural rules were probably devised by 14th and 15th century English courts as a means of alleviating the harshness of the death penalty in all felony cases, but today they frequently operate “to thwart justice and reduce judicial efficiency.” More than twenty years ago, this Court ⁷¹⁶ recognized in Watson v. State, 208 Md. 210, 218 , 117 A.2d 549 (1955): “ ‘This distinguishing of the accessory before the fact from the principal is a pure technicality. It has no existence either in natural reason or the ordinary doctrines of the law. For in natural reason the procurer of a crime is not chargeable differently from the doer; and a familiar rule of the common law is that what one does through another’s agency is regarded as done by hiinself____Likewise in morals, there are circumstances wherein we attach more blame to the accessory before the fact than to his principal;...’ ” (Quoting 1 J.Bishop, Criminal Law § 673, at 486-87 (9th ed. 1923)).

Whatever may have been the reason for the rule governing the sequence of the accessory’s and principal’s trials, that reason has long since disappeared. Where the evidence adduced at an accessory’s trial demonstrates beyond a reasonable doubt that a felonious homicide was in fact committed and that the defendant was an accessory to that crime, the defendant should not escape justice because there is yet no sentence in the principal’s case or the principal may have died before he could be tried. Consequently, commencing with the date of our mandate in the